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Assembly Actions -
Lowercase Senate Actions - UPPERCASE |
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|---|---|
| Jul 26, 2022 |
signed chap.481 delivered to governor |
| May 24, 2022 |
returned to senate passed assembly ordered to third reading rules cal.412 substituted for a8586b |
| May 16, 2022 |
referred to codes returned to assembly repassed senate |
| May 10, 2022 |
amended on third reading 7107b |
| May 10, 2022 |
vote reconsidered - restored to third reading returned to senate recalled from assembly |
| Mar 24, 2022 |
referred to mental health delivered to assembly passed senate |
| Mar 21, 2022 |
amended on third reading 7107a |
| Feb 28, 2022 |
advanced to third reading |
| Feb 17, 2022 |
2nd report cal. |
| Feb 16, 2022 |
1st report cal.540 |
| Jan 05, 2022 |
referred to disabilities returned to senate died in assembly |
| Jun 07, 2021 |
referred to mental health delivered to assembly passed senate |
| Jun 03, 2021 |
ordered to third reading cal.1510 committee discharged and committed to rules |
| Jun 01, 2021 |
referred to disabilities |
Senate Bill S7107B
Signed By Governor2021-2022 Legislative Session
Relates to supported decision-making by people with intellectual, developmental, cognitive and psychosocial disabilities
download bill text pdfSponsored By
(D) 50th Senate District
Archive: Last Bill Status - Signed by Governor
- Introduced
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- In Committee Assembly
- In Committee Senate
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- On Floor Calendar Assembly
- On Floor Calendar Senate
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- Passed Assembly
- Passed Senate
- Delivered to Governor
- Signed By Governor
Actions
Votes
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Floor Vote: May 16, 2022
aye (61)- Addabbo Jr.
- Akshar
- Bailey
- Biaggi
- Borrello
- Boyle
- Breslin
- Brisport
- Brooks
- Cleare
- Comrie
- Cooney
- Felder
- Gallivan
- Gaughran
- Gianaris
- Gounardes
- Griffo
- Harckham
- Helming
- Hinchey
- Hoylman-Sigal
- Jackson
- Jordan
- Kaminsky
- Kaplan
- Kavanagh
- Kennedy
- Krueger
- Lanza
- Liu
- Mannion
- Martucci
- Mattera
- May
- Mayer
- Myrie
- O'Mara
- Oberacker
- Ortt
- Palumbo
- Parker
- Persaud
- Ramos
- Rath III
- Reichlin-Melnick
- Ritchie
- Rivera
- Ryan
- Salazar
- Savino
- Sepúlveda
- Serino
- Serrano
- Skoufis
- Stavisky
- Stec
- Stewart-Cousins
- Tedisco
- Thomas
- Weik
excused (2)
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Bill Amendments
2021-S7107 - Details
2021-S7107 - Sponsor Memo
BILL NUMBER: S7107
SPONSOR: MANNION
TITLE OF BILL:
An act to amend the mental hygiene law, in relation to supported deci-
sion-making by people with intellectual, developmental, cognitive and
psychosocial disabilities
PURPOSE OF THE BILL:
To add Article 82 to the Mental Hygiene Law, identifying Supported Deci-
sion-Making as a less restrictive alternative to guardianship and to
create additional support and autonomy to individuals needing assistance
to make decisions for themselves. Creates obligations and corresponding
immunity froms liability for third patties in order to effectuate
supported decisions made with a Supported Decision-Making Agreement.
Allows regulations to be promulgated by state agencies serving a myriad
of individuals who may benefit by less restrictive support, such as the
Office for People With Developmental Disabilities, Office of Children
and Family Services and the Office for the Aging.
SUMMARY OF PROVISIONS: The fifteen proposed subdivisions, of Article 82 include: (1) a legislative purpose preamble; (2) definitions of terms used within the article; (3) provisions defining the presumption of an adult's capacity to enter into a supported decision-making agreement, and protections against using the adult's interest in or execution of a supported decision-mak- ing agreement as evidence of incapacity or the denial of services or benefits; (4) provisions defining the scope of the article, ensuring the continued availability of advance directives and access to personal information, preventing the participation of a supporter in conversations with third- party professionals from constituting a waiver of professional evidenti- ary privilege, and precluding the use of a supported decision-making agreement as a condition of participation in any activity, service, or program; (5) provisions defining the duties, responsibilities, and authority of supporters, and the limits of a supporter's role; (6) provisions describing the formation requirements of a supported decision-making agreement and setting the term of the agreement as effective until revoked by the decision-maker; (7) provisions on the requirements for revocation or amendment of a supported decision-making agreement, allowing for liberal changes to be made only by the decision-maker; (8) limitations on the eligibility of supporters, and process for resig- nation of a supporter; (9) provisions describing the requirement of a facilitation process for the extension of third-party obligations and liability protections; (10) provisions describing the form a supported decision-making agree- ment must take, including the additional requirements for extending third-party obligations and liability protections; (11) provisions describing the obligations on third parties to accept decisions made in accordance with any supported decision-making agree- ment that is validly executed follow a process of facilitation as defined by regulations to be promulgated by the Office for People With Developmental Disabilities; (12) provisions limiting liability for third parties who accept deci- sions made in accordance with any supported decision-making agreement that was validly executed following a process of facilitation as defined by regulations to be promulgated by the Office for People With Develop- mental Disabilities; (13) provisions allowing supporters to be designated by a supported decision-making agreement as parties who must receive prescribed notice by any agency, entity, or person in possession of the agreement, and requiring additional releases to provide any form of notice that may include protected information; (14) provisions recognizing a third party's ability to report Suspected abuse, coercion, undue influence, or financial exploitation, and ensur- ing that nothing in article may be construed as limiting a person"s existing duty-to report under any other statute or regulation; (15) a direction to the Commissioner Of the Office for People With Developmental Disabilities promulgate regulations necessary to implement the article and to ensure the availability of supported decision-making facilitation services required to extend the described third-party obli- gations and protections, An additional provision to allow other agencies whose service populations may benefit from supported decision-making to promulgate regulations for its implementation. JUSTIFICATION: This legislation would encourage a means of supporting and accommodating adults in the decision-making process allowing many the opportunity to make, communicate, and effetcuate life decisions without impeding their self-determination. As a less restrictive alternative to guardianship, the bill would alleviate pressure on guardianship courts and state agen- cies by promoting the autonomy of individuals with psychosocial, cogni- tive, intellectual, and developmental disabilities. Moreover, by formal- izing decision-making supports for individuals living in the community, it would promote person centered care, and enable expanded efforts towards de-institutionalization, as required by the Supreme Court's decision in Olmstead v. LC. PRIOR LEGISLATIVE HISTORY: No similar proposals are known to have been introduced by the legisla- ture. FISCAL IMPLICATIONS: The bill is expected to be fiscally-neurtal but has the potential for fiscal savings by, reducing the number of guardianship petition's filed under MHL Article 81 and SCPA Article 17-A as has been seen by certain other states with equivalent legislation. A comprehensive study on the potential for supported decision-making to provide long term fiscal savings in New York is currently being conducted by consultancy firm Stout Risius Ross. EFFECTIVE DATE: The act will take effect 90 days:from the date that the regulations issued in accordance with th act appear in the stab, register, or the date such regulations are adopted, whichever is later.
2021-S7107 - Bill Text download pdf
S T A T E O F N E W Y O R K
________________________________________________________________________
7107
2021-2022 Regular Sessions
I N S E N A T E
June 1, 2021
___________
Introduced by Sen. MANNION -- (at request of the Office for People with
Developmental Disabilities) -- read twice and ordered printed, and
when printed to be committed to the Committee on Disabilities
AN ACT to amend the mental hygiene law, in relation to supported deci-
sion-making by people with intellectual, developmental, cognitive and
psychosocial disabilities
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The mental hygiene law is amended by adding a new article
82 to read as follows:
ARTICLE 82
SUPPORTED DECISION-MAKING
SECTION 82.01 LEGISLATIVE FINDINGS AND PURPOSE.
82.02 DEFINITIONS.
82.03 PRESUMPTION OF CAPACITY.
82.04 SCOPE.
82.05 DUTIES, RESPONSIBILITIES, AND AUTHORITY OF SUPPORTERS.
82.06 FORMATION AND TERM OF AGREEMENT.
82.07 REVOCATION AND AMENDMENT OF AGREEMENT.
82.08 ELIGIBILITY AND RESIGNATION OF SUPPORTERS.
82.09 FACILITATION OF AGREEMENT.
82.10 FORM OF AGREEMENT.
82.11 LEGAL EFFECT OF DECISIONS MADE WITH SUPPORT AND THIRD-PAR-
TY OBLIGATIONS.
82.12 LIMITATIONS ON LIABILITY.
82.13 SUPPORTER NOTICE.
82.14 REPORTING ABUSE, COERCION, UNDUE INFLUENCE, OR FINANCIAL
EXPLOITATION.
82.15 RULES AND REGULATIONS.
§ 82.01 LEGISLATIVE FINDINGS AND PURPOSE.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD09657-01-1
S. 7107 2
(A) THE LEGISLATURE FINDS THAT A PERSON'S RIGHT TO MAKE THEIR OWN
DECISIONS IS CRITICAL TO THEIR AUTONOMY AND SELF-DETERMINATION. PEOPLE
WITH INTELLECTUAL, DEVELOPMENTAL, COGNITIVE AND PSYCHOSOCIAL DISABILI-
TIES ARE OFTEN DENIED THAT RIGHT BECAUSE OF STIGMA AND OUTDATED BELIEFS
ABOUT THEIR CAPABILITY. THIS RIGHT IS DENIED, DESPITE THE REALITY THAT
VERY FEW PEOPLE MAKE DECISIONS ENTIRELY ON THEIR OWN. EVERYONE USES
SUPPORTS, AS DO PEOPLE WITH DISABILITIES; WHO MAY JUST NEED MORE OR
DIFFERENT KINDS OF SUPPORTS.
(B) THE LEGISLATURE FURTHER FINDS THAT THE, NOW WELL RECOGNIZED, PRAC-
TICE OF SUPPORTED DECISION-MAKING IS A WAY IN WHICH PEOPLE WITH DISABIL-
ITIES CAN MAKE THEIR OWN DECISIONS WITH THE SUPPORT THEY NEED FROM
TRUSTED PERSONS IN THEIR LIVES, AND THAT SUPPORTED DECISION-MAKING CAN
BE A LESS RESTRICTIVE ALTERNATIVE TO GUARDIANSHIP. RECOGNIZING THAT
SUPPORTED DECISION-MAKING CAN TAKE A VARIETY OF FORMS, THE LEGISLATURE
FINDS THAT A MORE FORMAL PROCESS, RESULTING IN A SUPPORTED DECISION-MAK-
ING AGREEMENT BETWEEN THE PERSON WITH A DISABILITY (THE DECISION-MAKER)
AND THEIR SUPPORTER OR SUPPORTERS, CAN PROVIDE THE BASIS FOR REQUIRING
THIRD PARTIES, WHO MIGHT OTHERWISE QUESTION A PERSON'S LEGAL CAPACITY
BECAUSE OF THEIR DISABILITY, TO RECOGNIZE THEIR DECISIONS ON THE SAME
BASIS AS OTHERS, AND TO GRANT CORRESPONDING IMMUNITY TO SUCH PARTIES
WHEN THEY DO SO IN GOOD FAITH. WHEN THIS MORE FORMAL PROCESS IS
FOLLOWED, PEOPLE WITH DISABILITIES CAN MAKE CHOICES CONFIDENT THAT THEY
WILL BE RESPECTED BY OTHERS AND KNOWING THEY WILL BE SOLELY RESPONSIBLE
FOR THEIR OWN DECISIONS.
(C) THE LEGISLATURE FURTHER FINDS THAT SUPPORTED DECISION-MAKING AND
SUPPORTED DECISION-MAKING AGREEMENTS SHOULD BE ENCOURAGED FOR MOST
PERSONS WITH DISABILITIES, AND THAT THE EXECUTION OF A SUPPORTED DECI-
SION-MAKING AGREEMENT SHOULD NOT DETRIMENTALLY IMPACT THE ELIGIBILITY OF
A PERSON FOR OTHER SERVICES, INCLUDING ADULT PROTECTIVE SERVICES. AT
PRESENT, THE LEGISLATURE FINDS THERE IS SUFFICIENT EVIDENCE OF THE MEANS
OF PROVIDING SUPPORT TO PERSONS WITH INTELLECTUAL AND DEVELOPMENTAL
DISABILITIES, AS DEMONSTRATED, FOR EXAMPLE, THROUGH THE RECENTLY
COMPLETED FIVE-YEAR PILOT PROJECT FUNDED BY THE NEW YORK STATE DEVELOP-
MENTAL DISABILITY PLANNING COUNCIL, TO REQUIRE THIRD-PARTY RECOGNITION
OF DECISIONS MADE PURSUANT TO SUPPORTED DECISION-MAKING AGREEMENTS MADE
THROUGH A PROCESS OF FACILITATION FOR THE DECISION-MAKER AND THEIR
SUPPORTERS. WHERE PERSONS WITH INTELLECTUAL OR DEVELOPMENTAL DISABILI-
TIES AND THEIR SUPPORTERS RECEIVE FACILITATION AND/OR EDUCATION, IN
ACCORDANCE WITH REGULATIONS TO BE DRAFTED BY THE OFFICE FOR PEOPLE WITH
DEVELOPMENTAL DISABILITIES, THE LEGISLATURE WILL DEEM THEM TO HAVE LEGAL
CAPACITY ON A BASIS EQUAL WITH ALL OTHERS.
(D) THE LEGISLATURE ALSO STRONGLY URGES RELEVANT STATE AGENCIES AND
CIVIL SOCIETY TO RESEARCH AND DEVELOP APPROPRIATE AND EFFECTIVE MEANS OF
SUPPORT FOR OLDER PERSONS WITH COGNITIVE DECLINE, PERSONS WITH TRAUMATIC
BRAIN INJURIES, AND PERSONS WITH PSYCHOSOCIAL DISABILITIES, SO THAT FULL
LEGISLATIVE RECOGNITION CAN ALSO BE ACCORDED TO THE DECISIONS MADE WITH
SUPPORTED DECISION-MAKING AGREEMENTS BY PERSONS WITH SUCH CONDITIONS,
BASED ON A CONSENSUS ABOUT WHAT KINDS OF SUPPORT ARE MOST EFFECTIVE AND
HOW THEY CAN BEST BE DELIVERED.
§ 82.02 DEFINITIONS.
WHEN USED IN THIS ARTICLE, THE FOLLOWING TERMS SHALL HAVE THE FOLLOW-
ING MEANING, UNLESS THE CONTEXT OR SUBJECT MATTER REQUIRES A DIFFERENT
INTERPRETATION:
(A) "ABUSE" ENCOMPASSES PHYSICAL ABUSE, SEXUAL ABUSE, AND EMOTIONAL
ABUSE, AS DEFINED IN SECTION FOUR HUNDRED SEVENTY-THREE OF THE SOCIAL
SERVICES LAW.
S. 7107 3
(B) "ADULT" MEANS AN INDIVIDUAL EIGHTEEN YEARS OF AGE OR OLDER.
(C) "ADVANCE DIRECTIVE" MEANS A LEGALLY RECOGNIZED WRITTEN OR ORAL
INSTRUCTION BY AN ADULT RELATING TO THE PROVISION OF HEALTH CARE TO THE
ADULT IF AND WHEN THEY BECOME INCAPACITATED, INCLUDING BUT NOT LIMITED
TO A HEALTH CARE PROXY, A CONSENT TO THE ISSUANCE OF AN ORDER NOT TO
RESUSCITATE OR OTHER ORDERS FOR LIFE-SUSTAINING TREATMENT RECORDED IN A
PATIENT'S MEDICAL RECORD, OR OTHER LEGALLY-RECOGNIZED STATEMENTS OF
WISHES OR BELIEFS.
(D) "DECISION-MAKER" MEANS AN ADULT WHO HAS EXECUTED, OR SEEKS TO
EXECUTE, A SUPPORTED DECISION-MAKING AGREEMENT.
(E) "FINANCIAL EXPLOITATION" HAS THE MEANING GIVEN IN SECTION FOUR
HUNDRED SEVENTY-THREE OF THE SOCIAL SERVICES LAW.
(F) "GOOD FAITH" MEANS HONEST IN FACT AND IN THE OBSERVANCE OF REASON-
ABLE STANDARDS OF FAIR DEALING.
(G) "NEGLECT" HAS THE MEANING DEFINED IN PARAGRAPH (D) OF SUBDIVISION
ONE OF SECTION FOUR HUNDRED SEVENTY-THREE OF THE SOCIAL SERVICES LAW.
(H) "PHYSICAL COERCION" MEANS TO PLACE UNDER DURESS, MENACE, OR
THREATEN PHYSICAL VIOLENCE OR IMPRISONMENT.
(I) "SUPPORTED DECISION-MAKING" MEANS A WAY BY WHICH A DECISION-MAKER
UTILIZES SUPPORT FROM TRUSTED PERSONS IN THEIR LIFE, IN ORDER TO MAKE
THEIR OWN DECISIONS ABOUT THEIR LIFE, INCLUDING, BUT NOT LIMITED TO,
DECISIONS RELATED TO WHERE AND WITH WHOM THE DECISION-MAKER WANTS TO
LIVE; DECISIONS ABOUT FINANCES; THE SERVICES, SUPPORTS, AND HEALTH CARE
THE DECISION-MAKER WANTS TO RECEIVE; AND WHERE THE DECISION-MAKER WANTS
TO WORK.
(J) "SUPPORTED DECISION-MAKING AGREEMENT" IS AN AGREEMENT A DECISION-
MAKER ENTERS INTO WITH ONE OR MORE SUPPORTERS UNDER THIS SECTION THAT
DESCRIBES HOW THE DECISION-MAKER USES SUPPORTED DECISION-MAKING TO MAKE
THEIR OWN DECISIONS.
(K) "SUPPORTER" MEANS AN ADULT WHO HAS VOLUNTARILY ENTERED INTO A
SUPPORTED DECISION-MAKING AGREEMENT WITH A DECISION-MAKER, AGREEING TO
ASSIST THE DECISION-MAKER IN MAKING THEIR OWN DECISIONS AS PRESCRIBED BY
THE SUPPORTED DECISION-MAKING AGREEMENT, AND WHO IS NOT INELIGIBLE UNDER
SECTION 82.08 OF THIS ARTICLE.
(L) "UNDUE INFLUENCE" MEANS MORAL OR MENTAL COERCION THAT LEADS SOME-
ONE TO CARRY OUT THE WISHES OF ANOTHER INSTEAD OF THEIR OWN BECAUSE THEY
ARE UNABLE TO REFUSE OR RESIST.
§ 82.03 PRESUMPTION OF CAPACITY.
(A) FOR THE PURPOSES OF THIS ARTICLE, EVERY ADULT SHALL BE PRESUMED TO
HAVE THE CAPACITY TO ENTER INTO A SUPPORTED DECISION-MAKING AGREEMENT,
UNLESS THAT ADULT HAS A LEGAL GUARDIAN, APPOINTED BY A COURT OF COMPE-
TENT JURISDICTION, WHOSE GRANTED AUTHORITY IS IN CONFLICT WITH THE
PROPOSED SUPPORTED DECISION-MAKING AGREEMENT. THIS PRESUMPTION MAY BE
REBUTTED ONLY BY CLEAR AND CONVINCING EVIDENCE.
(B) CAPACITY SHALL INCLUDE CAPACITY WITH DECISION-MAKING SUPPORT
AND/OR ACCOMMODATIONS.
(C) A DIAGNOSIS OF INTELLECTUAL, DEVELOPMENTAL, OR OTHER DISABILITY OR
CONDITION SHALL NOT CONSTITUTE EVIDENCE OF INCAPACITY.
(D) THE MANNER IN WHICH AN ADULT COMMUNICATES WITH OTHERS SHALL NOT
CONSTITUTE EVIDENCE OF INCAPACITY.
(E) NO PERSON OR COURT MAY USE OR CONSIDER A DECISION-MAKER'S
EXECUTION OF, OR WISH TO EXECUTE, A SUPPORTED DECISION-MAKING AGREEMENT
AS EVIDENCE THAT THE DECISION-MAKER LACKS CAPACITY, OR TO DENY THE DECI-
SION-MAKER BENEFITS TO WHICH THEY ARE OTHERWISE ENTITLED.
(F) A DECISION-MAKER MAY MAKE, CHANGE, OR REVOKE A SUPPORTED DECI-
SION-MAKING AGREEMENT, IF THE DECISION-MAKER UNDERSTANDS THAT THEY ARE
S. 7107 4
MAKING, CHANGING, OR REVOKING AN AGREEMENT WITH THEIR CHOSEN SUPPORTERS
AND THAT THEY ARE DOING SO VOLUNTARILY.
§ 82.04 SCOPE.
(A) IF A DECISION-MAKER VOLUNTARILY ENTERS INTO A SUPPORTED DECISION-
MAKING AGREEMENT WITH ONE OR MORE SUPPORTERS, THE DECISION-MAKER MAY, IN
THE AGREEMENT, AUTHORIZE THE SUPPORTER TO PROVIDE SUPPORT TO THEM IN
MAKING THEIR OWN DECISIONS IN AREAS THEY CHOOSE, INCLUDING, BUT NOT
LIMITED TO: GATHERING INFORMATION, UNDERSTANDING AND INTERPRETING INFOR-
MATION, WEIGHING OPTIONS AND ALTERNATIVES TO A DECISION, CONSIDERING
THE CONSEQUENCES OF MAKING A DECISION OR NOT MAKING IT, PARTICIPATING IN
CONVERSATIONS WITH THIRD PARTIES IF THE DECISION-MAKER IS PRESENT AND
REQUESTS THEIR PARTICIPATION, COMMUNICATING THE DECISION-MAKER'S DECI-
SION TO THIRD PARTIES, AND PROVIDING THE DECISION-MAKER SUPPORT IN
IMPLEMENTING THE DECISION-MAKER'S DECISION.
(B) NOTHING IN THIS ARTICLE, NOR THE EXISTENCE OF AN EXECUTED
SUPPORTED DECISION-MAKING AGREEMENT, SHALL PRECLUDE THE DECISION-MAKER
FROM ACTING INDEPENDENTLY OF THE SUPPORTED DECISION-MAKING AGREEMENT OR
EXECUTING, WITH OR WITHOUT THE ASSISTANCE OF SUPPORTERS UNDER A
SUPPORTED DECISION-MAKING AGREEMENT, A POWER OF ATTORNEY UNDER TITLE
FIFTEEN OF ARTICLE FIVE OF THE GENERAL OBLIGATIONS LAW, HEALTH CARE
PROXY UNDER ARTICLE TWENTY-NINE-C OF THE PUBLIC HEALTH LAW, OR OTHER
ADVANCE DIRECTIVE.
(C) NOTWITHSTANDING THE EXISTENCE OF A SUPPORTED DECISION-MAKING
AGREEMENT, A DECISION-MAKER SHALL CONTINUE TO HAVE UNRESTRICTED ACCESS
TO THEIR PERSONAL INFORMATION WITHOUT THE ASSISTANCE OF A SUPPORTER.
(D) NOTWITHSTANDING THE EXISTENCE OF A SUPPORTED DECISION-MAKING
AGREEMENT, A DECISION-MAKER MAY REQUEST AND RECEIVE ASSISTANCE IN MAKING
ANY DECISION THAT IS NOT COVERED UNDER THE SUPPORTED DECISION-MAKING
AGREEMENT AT ANY TIME AND FROM ANY PERSON, REGARDLESS OF WHETHER THAT
PERSON IS DESIGNATED AS A SUPPORTER IN THE SUPPORTED DECISION-MAKING
AGREEMENT.
(E) A SUPPORTED DECISION-MAKING AGREEMENT MADE PURSUANT TO THIS ARTI-
CLE MAY BE EVIDENCE THAT THE DECISION-MAKER HAS A LESS RESTRICTIVE
ALTERNATIVE TO GUARDIANSHIP IN PLACE.
(F) THE AVAILABILITY OF SUPPORTED DECISION-MAKING AGREEMENTS IS, IN NO
WAY, INTENDED TO LIMIT THE INFORMAL USE OF SUPPORTED DECISION-MAKING, OR
TO PRECLUDE JUDICIAL CONSIDERATION OF SUCH INFORMAL ARRANGEMENTS AS LESS
RESTRICTIVE ALTERNATIVES TO GUARDIANSHIP.
(G) EXECUTION OF A SUPPORTED DECISION-MAKING AGREEMENT MAY NOT BE A
CONDITION OF PARTICIPATION IN ANY ACTIVITY, SERVICE, OR PROGRAM.
(H) IF A DECISION-MAKER SEEKS FROM ANY PERSON PROFESSIONAL ADVICE THAT
WOULD BE OTHERWISE COVERED BY EVIDENTIARY PRIVILEGE IN ACCORDANCE WITH
SECTIONS FORTY-FIVE HUNDRED THREE, FORTY-FIVE HUNDRED FOUR, FORTY-FIVE
HUNDRED SEVEN, FORTY-FIVE HUNDRED EIGHT AND FORTY-FIVE HUNDRED TEN OF
THE CIVIL PRACTICE LAW AND RULES, THE INCLUSION IN THE CONVERSATION OF A
SUPPORTER AUTHORIZED BY THE SUPPORTED DECISION-MAKING AGREEMENT TO
PROVIDE SUPPORT IN THE AREA IN WHICH THE DECISION-MAKER SEEKS THE
PROFESSIONAL ADVICE SHALL NOT CONSTITUTE A WAIVER OF THAT PRIVILEGE.
(I) NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, NOTH-
ING WITHIN THIS ARTICLE SHALL BE CONSTRUED TO PROHIBIT ELIGIBILITY OF A
DECISION-MAKER FOR RECEIPT OF SERVICES OR SUPPORTS THAT THEY WOULD HAVE
OTHERWISE BEEN ENTITLED ABSENT ENTERING INTO A SUPPORTED DECISION-MAKING
AGREEMENT UNDER THE PROVISIONS OF THIS ARTICLE.
§ 82.05 DUTIES, RESPONSIBILITIES, AND AUTHORITY OF SUPPORTERS.
(A) A SUPPORTER MUST:
S. 7107 5
1. RESPECT THE DECISION-MAKER'S RIGHT TO MAKE A DECISION, EVEN WHEN
THE SUPPORTER DISAGREES WITH THE DECISION OR BELIEVES IT IS NOT IN THE
DECISION-MAKER'S BEST INTERESTS;
2. ACT HONESTLY, DILIGENTLY, AND IN GOOD FAITH;
3. ACT WITHIN THE SCOPE SET FORTH IN THE EXECUTED SUPPORTED DECISION-
MAKING AGREEMENT;
4. AVOID CONFLICTS OF INTEREST; AND
5. NOTIFY THE DECISION-MAKER IN WRITING, AND IN A MANNER THE DECI-
SION-MAKER CAN UNDERSTAND, OF THE SUPPORTER'S INTENT TO RESIGN AS A
SUPPORTER.
(B) A SUPPORTER IS PROHIBITED FROM:
1. MAKING DECISIONS FOR THE DECISION-MAKER, EXCEPT TO THE EXTENT
OTHERWISE GRANTED IN AN ADVANCE DIRECTIVE;
2. EXERTING UNDUE INFLUENCE UPON THE DECISION-MAKER;
3. PHYSICALLY COERCING THE DECISION-MAKER;
4. OBTAINING, WITHOUT THE CONSENT OF THE DECISION-MAKER, INFORMATION
ACQUIRED FOR A PURPOSE OTHER THAN ASSISTING THE DECISION-MAKER IN MAKING
A DECISION AUTHORIZED BY THE SUPPORTED DECISION-MAKING AGREEMENT; AND
5. OBTAINING, WITHOUT THE CONSENT OF THE DECISION-MAKER, OR AS
EXPRESSLY GRANTED BY THE SUPPORTED DECISION-MAKING AGREEMENT, AND ACCOM-
PANIED BY AN APPROPRIATE RELEASE, NONPUBLIC PERSONAL INFORMATION AS
DEFINED IN 15 U.S.C. § 6809(4)(A), OR CLINICAL RECORDS OR INFORMATION
UNDER SUBDIVISION (C) OF SECTION OF 33.13 OF THIS CHAPTER.
(C) THE RELATIONSHIP BETWEEN A DECISION-MAKER AND A SUPPORTER IS ONE
OF TRUST AND CONFIDENCE AND SERVES TO PRESERVE THE DECISION-MAKING
AUTHORITY OF THE DECISION-MAKER.
(D) A SUPPORTER SHALL NOT BE CONSIDERED A SURROGATE OR SUBSTITUTE
DECISION MAKER FOR THE DECISION-MAKER AND SHALL NOT HAVE THE AUTHORITY
TO SIGN LEGAL DOCUMENTS ON BEHALF OF THE DECISION-MAKER OR BIND THE
DECISION-MAKER TO A LEGAL AGREEMENT, BUT MAY, IF SUCH AUTHORITY IS
EXPRESSLY GRANTED IN THE SUPPORTED DECISION-MAKING AGREEMENT, PROVIDE
CO-SIGNATURE TOGETHER WITH THE DECISION-MAKER ACKNOWLEDGING THE RECEIPT
OF STATEMENTS OF RIGHTS AND RESPONSIBILITIES IN ORDER TO PERMIT PARTIC-
IPATION IN SUCH PROGRAMS OR ACTIVITIES THAT THE DECISION-MAKER HAS
COMMUNICATED A CHOICE TO PARTICIPATE IN.
(E) IF EXPRESSLY GRANTED BY THE SUPPORTED DECISION-MAKING AGREEMENT,
AND THE DECISION-MAKER HAS SIGNED AN APPROPRIATE RELEASE, THE SUPPORTER
MAY ASSIST THE DECISION-MAKER IN OBTAINING EDUCATIONAL RECORDS UNDER THE
FAMILY EDUCATIONAL RIGHTS AND PRIVACY ACT OF 1974 (20 U.S.C. § 1232G),
PROTECTED HEALTH INFORMATION UNDER THE HEALTH INSURANCE PORTABILITY AND
ACCOUNTABILITY ACT OF 1996 (45 CFR §§ 164.502, 164.508), OR CLINICAL
RECORDS AND INFORMATION UNDER SUBDIVISION (C) OF SECTION 33.13 OF THIS
CHAPTER.
(F) A SUPPORTER SHALL ENSURE THE INFORMATION UNDER THIS SECTION IS
KEPT PRIVILEGED AND CONFIDENTIAL, AS APPLICABLE, AND IS NOT SUBJECT TO
UNAUTHORIZED ACCESS, USE, OR DISCLOSURE.
§ 82.06 FORMATION AND TERM OF AGREEMENT.
(A) AN ADULT MAY ENTER INTO A SUPPORTED DECISION-MAKING AGREEMENT AT
ANY TIME IF THE ADULT ENTERS INTO THE AGREEMENT VOLUNTARILY.
(B) A DECISION-MAKER MAY SIGN A SUPPORTED DECISION-MAKING AGREEMENT IN
ANY MANNER, INCLUDING ELECTRONIC SIGNATURES PERMITTED UNDER ARTICLE
THREE OF THE STATE TECHNOLOGY LAW.
(C) A SUPPORTED DECISION-MAKING AGREEMENT FORMED UNDER THE PROVISIONS
OF THIS ARTICLE SHALL REMAIN IN EFFECT UNLESS AND UNTIL REVOKED BY THE
DECISION-MAKER.
§ 82.07 REVOCATION AND AMENDMENT OF AGREEMENT.
S. 7107 6
(A) THE DECISION-MAKER MAY REVOKE ALL OR PART OF A SUPPORTED DECI-
SION-MAKING AGREEMENT BY NOTIFYING THE SUPPORTERS ORALLY OR IN WRITING,
OR BY ANY OTHER ACT EVINCING A SPECIFIC INTENT TO REVOKE THE AGREEMENT.
THE FAILURE OF THE DECISION-MAKER TO NOTIFY SUPPORTERS SHALL NOT INVALI-
DATE THE REVOCATION OF ALL OR PART OF THE SUPPORTED DECISION-MAKING
AGREEMENT.
(B) A DECISION-MAKER MAY AMEND A SUPPORTED DECISION-MAKING AGREEMENT
AT ANY TIME FOR ANY REASON, SUBJECT TO THE REQUIREMENTS OF THIS SECTION.
THE DECISION-MAKER SHALL NOTIFY ALL SUPPORTERS OF ANY AMENDMENT MADE TO
THE SUPPORTED DECISION-MAKING AGREEMENT, BUT THE FAILURE TO DO SO SHALL
NOT INVALIDATE THE AMENDMENT.
§ 82.08 ELIGIBILITY AND RESIGNATION OF SUPPORTERS.
(A) A SUPPORTER SHALL BE ANY ADULT CHOSEN BY THE DECISION-MAKER.
(B) AN INDIVIDUAL WHO HAS BEEN CHOSEN BY THE DECISION-MAKER TO BE A
SUPPORTER, OR WHO HAS ENTERED INTO A SUPPORTED DECISION-MAKING AGREEMENT
AS A SUPPORTER SHALL BE DEEMED INELIGIBLE TO ACT, CONTINUE TO SERVE AS
SUPPORTER UPON THE OCCURRENCE OF ANY OF THE FOLLOWING:
1. A COURT AUTHORIZES A PROTECTIVE ORDER OR RESTRAINING ORDER AGAINST
THE SUPPORTER ON REQUEST OF OR ON BEHALF OF THE DECISION-MAKER; OR
2. THE LOCAL DEPARTMENT OF SOCIAL SERVICES HAS FOUND THAT THE SUPPORT-
ER HAS COMMITTED ABUSE, NEGLECT, FINANCIAL EXPLOITATION, OR PHYSICAL
COERCION AGAINST THE DECISION-MAKER AS SUCH TERMS ARE DEFINED IN SECTION
82.02 OF THIS ARTICLE.
(C) A SUPPORTER MAY RESIGN AS SUPPORTER BY WRITTEN OR ORAL NOTICE TO
THE DECISION-MAKER AND THE REMAINING SUPPORTERS. IF THE SUPPORTED DECI-
SION-MAKING AGREEMENT INCLUDES MORE THAN ONE SUPPORTER OR IS AMENDED TO
REPLACE THE SUPPORTER WHO HAS RESIGNED, THE SUPPORTED DECISION-MAKING
AGREEMENT SHALL SURVIVE FOR SUPPORTERS WHO HAVE NOT RESIGNED AS SUPPORT-
ERS, UNLESS IT IS OTHERWISE REVOKED UNDER THIS SECTION.
(D) IF A SUPPORTER WITH WHOM A DECISION-MAKER ENTERED INTO A SUPPORTED
DECISION-MAKING AGREEMENT BECOMES INELIGIBLE TO SERVE AS SUPPORTER UNDER
SUBDIVISION (B) OF THIS SECTION, OR RESIGNS AS SUPPORTER UNDER SUBDIVI-
SION (C) OF THIS SECTION, AND THE DECISION-MAKER DOES NOT AMEND THE
SUPPORTED DECISION-MAKING AGREEMENT TO DESIGNATE A REPLACEMENT, THE
SUPPORTED DECISION-MAKING AGREEMENT SHALL BE CONSIDERED TERMINATED AS TO
THE ROLE OF THE INELIGIBLE OR RESIGNED SUPPORTER, BUT SHALL CONTINUE TO
HAVE EFFECT AS TO ANY OTHER DESIGNATED SUPPORTERS.
§ 82.09 FACILITATION OF AGREEMENT.
THE PROVISIONS OF SECTION 82.11 AND SUBDIVISIONS (B) THROUGH (D) OF
SECTION 82.12 OF THIS ARTICLE SHALL ONLY APPLY IN CIRCUMSTANCES WHERE A
DECISION IS MADE BY A DECISION-MAKER WHO RECEIVES OR IS ELIGIBLE TO
RECEIVE SERVICES THAT ARE OPERATED, CERTIFIED, FUNDED OR APPROVED BY THE
OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES, PURSUANT TO A
SUPPORTED DECISION-MAKING AGREEMENT MADE IN ACCORDANCE WITH THIS ARTICLE
AND FOLLOWING A RECOGNIZED SUPPORTED DECISION-MAKING FACILITATION OR
EDUCATION PROCESS AS DEFINED AND PRESCRIBED BY REGULATIONS PROMULGATED
BY THE OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES.
§ 82.10 FORM OF AGREEMENT.
(A) A SUPPORTED DECISION-MAKING AGREEMENT MAY BE IN ANY FORM CONSIST-
ENT WITH THE REQUIREMENTS SET FORTH IN THIS ARTICLE.
(B) A SUPPORTED DECISION-MAKING AGREEMENT MUST:
1. BE IN WRITING;
2. BE DATED;
3. DESIGNATE THE DECISION-MAKER, AND AT LEAST ONE SUPPORTER;
4. LIST THE CATEGORIES OF DECISIONS WITH WHICH A SUPPORTER IS AUTHOR-
IZED TO ASSIST THE DECISION-MAKER;
S. 7107 7
5. LIST THE KINDS OF SUPPORT THAT EACH SUPPORTER MAY GIVE FOR EACH
AREA IN WHICH THEY ARE DESIGNATED AS A SUPPORTER;
6. CONTAIN AN ATTESTATION THAT THE SUPPORTERS AGREE TO HONOR THE RIGHT
OF THE DECISION-MAKER TO MAKE THEIR OWN DECISIONS IN THE WAYS AND AREAS
SPECIFIED IN THE AGREEMENT, RESPECT THE DECISION-MAKER'S DECISIONS, AND,
FURTHER, THAT THEY WILL NOT MAKE DECISIONS FOR THE DECISION-MAKER;
7. STATE THAT THE DECISION-MAKER MAY CHANGE, AMEND, OR REVOKE THE
SUPPORTED DECISION-MAKING AGREEMENT AT ANY TIME FOR ANY REASON, SUBJECT
TO THE REQUIREMENTS OF SECTION 82.06 OF THIS ARTICLE;
8. BE SIGNED BY ALL DESIGNATED SUPPORTERS; AND
9. BE EXECUTED OR ENDORSED BY THE DECISION-MAKER IN THE PRESENCE OF AT
LEAST TWO ADULT WITNESSES WHO ARE NOT ALSO DESIGNATED AS SUPPORTERS, OR
WITH THE ATTESTATION OF A NOTARY PUBLIC.
(C) A SUPPORTED DECISION-MAKING AGREEMENT MAY:
1. APPOINT MORE THAN ONE SUPPORTER;
2. AUTHORIZE A SUPPORTER TO OBTAIN PERSONAL INFORMATION AS DESCRIBED
IN SUBDIVISION (E) OF SECTION 82.05 OF THIS ARTICLE;
3. AUTHORIZE A SUPPORTER TO SHARE INFORMATION WITH ANY OTHER SUPPORTER
OR OTHERS NAMED IN THE AGREEMENT; OR
4. DETAIL ANY OTHER LIMITATIONS ON THE SCOPE OF A SUPPORTER'S ROLE
THAT THE DECISION-MAKER DEEMS IMPORTANT.
(D) IN ORDER TO BE SUBJECT TO THE PROVISIONS OF SECTION 82.11 AND
SUBDIVISIONS (B) THROUGH (D) OF SECTION 82.12 OF THIS ARTICLE, A
SUPPORTED DECISION-MAKING AGREEMENT MUST ALSO:
1. BE SIGNED BY A FACILITATOR OR EDUCATOR;
2. INCLUDE A STATEMENT THAT THE SUPPORTED DECISION-MAKING AGREEMENT
WAS MADE IN ACCORDANCE WITH A RECOGNIZED FACILITATION AND/OR EDUCATION
PROCESS; AND
3. INCLUDE AN ATTACHED ATTESTATION BY THE DECISION-MAKER THAT A
PARTICULAR DECISION HAS BEEN MADE IN ACCORDANCE WITH THE SUPPORT
DESCRIBED IN THE SUPPORTED DECISION-MAKING AGREEMENT.
§ 82.11 LEGAL EFFECT OF DECISIONS MADE WITH SUPPORT AND THIRD-PARTY
OBLIGATIONS.
(A) THIS SECTION SHALL APPLY ONLY TO DECISIONS MADE BY ADULTS WHO
RECEIVE OR ARE ELIGIBLE TO RECEIVE SERVICES THAT ARE OPERATED, CERTI-
FIED, FUNDED OR APPROVED BY THE OFFICE FOR PEOPLE WITH DEVELOPMENTAL
DISABILITIES, AND PURSUANT TO SUPPORTED DECISION-MAKING AGREEMENTS MADE
IN ACCORDANCE WITH THIS ARTICLE AND FOLLOWING A RECOGNIZED SUPPORTED
DECISION-MAKING FACILITATION OR EDUCATION PROCESS, AS PRESCRIBED BY
REGULATIONS GOVERNING THE FACILITATION AND EDUCATION PROCESSES PROMUL-
GATED BY THE OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES.
(B) A DECISION OR REQUEST MADE OR COMMUNICATED BY A DECISION-MAKER
WITH THE ASSISTANCE OF A SUPPORTER IN ACCORDANCE WITH THE PROVISIONS OF
A SUPPORTED DECISION-MAKING AGREEMENT MUST, NOTWITHSTANDING ANY OTHER
PROVISION OF LAW, BE RECOGNIZED AS THE DECISION OR REQUEST OF THE DECI-
SION-MAKER AND MAY BE ENFORCED BY THE DECISION-MAKER IN LAW OR EQUITY ON
THE SAME BASIS AS ALL OTHERS.
(C) A PERSON, ENTITY, OR AGENCY REQUIRED TO RECOGNIZE AND HONOR A
DECISION MADE PURSUANT TO A SUPPORTED DECISION-MAKING AGREEMENT AUTHOR-
IZED BY THIS SECTION MAY REQUIRE THE DECISION-MAKER TO EXECUTE OR
ENDORSE AN ATTESTATION, AS PROVIDED IN PARAGRAPH THREE OF SUBDIVISION
(D) OF SECTION 82.10 OF THIS ARTICLE, AS A CONDITION OF RECOGNIZING AND
HONORING THE DECISION.
(D) A PERSON, ENTITY, OR AGENCY THAT RECEIVES A SUPPORTED DECISION-
MAKING AGREEMENT MUST HONOR A DECISION MADE IN ACCORDANCE WITH THE
AGREEMENT, UNLESS THE PERSON, ENTITY, OR AGENCY HAS SUBSTANTIAL CAUSE TO
S. 7107 8
BELIEVE THE SUPPORTED DECISION-MAKING AGREEMENT HAS BEEN REVOKED, OR THE
DECISION-MAKER IS BEING ABUSED, COERCED, UNDULY INFLUENCED, OR FINAN-
CIALLY EXPLOITED BY THE SUPPORTER, OR THAT THE DECISION WILL CAUSE THE
DECISION-MAKER SUBSTANTIAL AND IMMINENT PHYSICAL OR FINANCIAL HARM.
§ 82.12 LIMITATIONS ON LIABILITY.
(A) SUBDIVISIONS (B), (C) AND (D) OF THIS SECTION SHALL APPLY ONLY TO
DECISIONS MADE BY ADULTS WHO RECEIVE OR ARE ELIGIBLE TO RECEIVE SERVICES
THAT ARE OPERATED, CERTIFIED, FUNDED OR APPROVED BY THE OFFICE FOR
PEOPLE WITH DEVELOPMENTAL DISABILITIES, AND PURSUANT TO SUPPORTED DECI-
SION-MAKING AGREEMENTS MADE IN ACCORDANCE WITH THIS ARTICLE AND FOLLOW-
ING A RECOGNIZED SUPPORTED DECISION-MAKING FACILITATION OR EDUCATION
PROCESS, AS PRESCRIBED BY REGULATIONS GOVERNING THE FACILITATION AND
EDUCATION PROCESSES PROMULGATED BY THE OFFICE FOR PEOPLE WITH DEVELOP-
MENTAL DISABILITIES.
(B) A PERSON SHALL NOT BE SUBJECT TO CRIMINAL OR CIVIL LIABILITY AND
SHALL NOT BE DETERMINED TO HAVE ENGAGED IN PROFESSIONAL MISCONDUCT FOR
AN ACT OR OMISSION IF THE ACT OR OMISSION IS DONE IN GOOD FAITH AND IN
RELIANCE ON A DECISION MADE BY AN DECISION-MAKER PURSUANT TO A DULY
EXECUTED SUPPORTED DECISION-MAKING AGREEMENT MADE IN ACCORDANCE WITH
THIS ARTICLE.
(C) ANY HEALTH CARE PROVIDER THAT PROVIDES HEALTH CARE BASED ON THE
CONSENT OF A DECISION-MAKER, GIVEN WITH SUPPORT OR ASSISTANCE PROVIDED
THROUGH A DULY EXECUTED SUPPORTED DECISION-MAKING AGREEMENT, MADE IN
ACCORDANCE WITH THIS ARTICLE, SHALL BE IMMUNE FROM ANY ACTION ALLEGING
THAT THE DECISION-MAKER LACKED CAPACITY TO PROVIDE INFORMED CONSENT
UNLESS THE ENTITY, CUSTODIAN, OR ORGANIZATION HAD ACTUAL KNOWLEDGE OR
NOTICE THAT THE DECISION-MAKER HAD REVOKED THE SUPPORTED DECISION-MAKING
AGREEMENT, OR THAT THE SUPPORTER HAD COMMITTED ABUSE, PHYSICAL COERCION,
UNDUE INFLUENCE, OR FINANCIAL EXPLOITATION WITH RESPECT TO THE DECISION
TO GRANT CONSENT.
(D) ANY PUBLIC OR PRIVATE ENTITY, CUSTODIAN, OR ORGANIZATION THAT
DISCLOSES PERSONAL INFORMATION ABOUT A DECISION-MAKER IN RELIANCE ON THE
TERMS OF A DULY EXECUTED SUPPORTED DECISION-MAKING AGREEMENT MADE IN
ACCORDANCE WITH THIS ARTICLE, TO A SUPPORTER AUTHORIZED BY THE TERMS OF
THE SUPPORTED DECISION-MAKING AGREEMENT TO ASSIST THE DECISION-MAKER IN
ACCESSING, COLLECTING, OR OBTAINING THAT INFORMATION UNDER SUBDIVISION
(E) OF SECTION 82.05 OF THIS ARTICLE SHALL BE IMMUNE FROM ANY ACTION
ALLEGING THAT IT IMPROPERLY OR UNLAWFULLY DISCLOSED SUCH INFORMATION TO
THE SUPPORTER UNLESS THE ENTITY, CUSTODIAN, OR ORGANIZATION HAD ACTUAL
KNOWLEDGE THAT DECISION-MAKER HAD REVOKED SUCH AUTHORIZATION.
(E) THIS SECTION MAY NOT BE CONSTRUED TO PROVIDE IMMUNITY FROM ACTIONS
ALLEGING THAT A HEALTH CARE PROVIDER HAS DONE ANY OF THE FOLLOWING:
1. CAUSED PERSONAL INJURY AS A RESULT OF A NEGLIGENT, RECKLESS, OR
INTENTIONAL ACT;
2. ACTED INCONSISTENTLY WITH THE EXPRESSED WISHES OF A DECISION-MAKER;
3. FAILED TO PROVIDE INFORMATION TO EITHER DECISION-MAKER OR THEIR
SUPPORTER THAT WOULD BE NECESSARY FOR INFORMED CONSENT; OR
4. OTHERWISE ACTED INCONSISTENTLY WITH APPLICABLE LAW.
(F) THE EXISTENCE OR AVAILABILITY OF A SUPPORTED DECISION-MAKING
AGREEMENT DOES NOT RELIEVE A HEALTH CARE PROVIDER OF ANY LEGAL OBLI-
GATION TO PROVIDE SERVICES TO INDIVIDUALS WITH DISABILITIES, INCLUDING
THE OBLIGATION TO PROVIDE REASONABLE ACCOMMODATIONS OR AUXILIARY AIDS
AND SERVICES, INCLUDING, BUT NOT LIMITED TO, INTERPRETATION SERVICES AND
COMMUNICATION SUPPORTS TO INDIVIDUALS WITH DISABILITIES UNDER THE FEDER-
AL AMERICANS WITH DISABILITIES ACT (42 U.S.C. § 12101).
§ 82.13 SUPPORTER NOTICE.
S. 7107 9
(A) IF ANY STATE OR MUNICIPAL LAW REQUIRES THAT AN AGENCY, ENTITY, OR
PERSON PROVIDE A PRESCRIBED NOTICE TO A DECISION-MAKER, AND THE AGENCY,
ENTITY, OR PERSON REQUIRED TO PROVIDE SUCH NOTICE HAS RECEIVED A
SUPPORTED DECISION-MAKING AGREEMENT FROM A DECISION-MAKER THAT SPECIFIES
THAT A SUPPORTER IS ALSO TO RECEIVE A COPY OF ANY SUCH NOTICE, THEN THE
AGENCY, ENTITY, OR PERSON IN POSSESSION OF THE SUPPORTED DECISION-MAKING
AGREEMENT SHALL ALSO PROVIDE THE SPECIFIED SUPPORTER WITH A COPY OF SUCH
NOTICE.
(B) NOTWITHSTANDING THE PROVISIONS OF THIS SUBSECTION, IF ANY STATE OR
MUNICIPAL LAW REQUIRES THAT AN AGENCY, ENTITY, OR PERSON PROVIDE A
PRESCRIBED NOTICE TO A DECISION-MAKER AND SUCH NOTICE INCLUDES PROTECTED
INFORMATION, INCLUDING PRIVATE HEALTH INFORMATION OR EDUCATIONAL RECORDS
PROTECTED BY STATE OR FEDERAL LAW, SUCH NOTICE SHALL NOT BE PROVIDED TO
THE SPECIFIED SUPPORTER UNLESS THE SUPPORTED DECISION-MAKING AGREEMENT
IS ACCOMPANIED BY A RELEASE AUTHORIZING THE SPECIFIED SUPPORTER TO
OBTAIN THE PROTECTED INFORMATION.
§ 82.14 REPORTING ABUSE, COERCION, UNDUE INFLUENCE, OR FINANCIAL EXPLOI-
TATION.
(A) ANY PERSON WHO RECEIVES A COPY OF OR AN ORIGINAL SUPPORTED DECI-
SION-MAKING AGREEMENT AND HAS CAUSE TO BELIEVE THE DECISION-MAKER IS
BEING ABUSED, PHYSICALLY COERCED, OR FINANCIALLY EXPLOITED BY A SUPPORT-
ER, MAY REPORT THE ALLEGED ABUSE, PHYSICAL COERCION, OR FINANCIAL
EXPLOITATION TO ADULT PROTECTIVE SERVICES PURSUANT TO SECTION FOUR
HUNDRED SEVENTY-THREE OF THE SOCIAL SERVICES LAW.
(B) NOTHING IN THIS SECTION MAY BE CONSTRUED AS ELIMINATING OR LIMIT-
ING A PERSON'S DUTY OR REQUIREMENT TO REPORT UNDER ANY OTHER STATUTE OR
REGULATION.
§ 82.15 RULES AND REGULATIONS.
(A) THE COMMISSIONER OF THE OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISA-
BILITIES SHALL PROMULGATE WITHIN ONE YEAR OF THE PASSAGE OF THIS ACT THE
RULES AND REGULATIONS NECESSARY TO IMPLEMENT THIS ARTICLE FOR ADULTS WHO
RECEIVE OR ARE ELIGIBLE TO RECEIVE SERVICES THAT ARE OPERATED, CERTI-
FIED, FUNDED OR APPROVED BY THE OFFICE FOR PEOPLE WITH DEVELOPMENTAL
DISABILITIES.
(B) FURTHER REGULATIONS RELATED TO THIS ARTICLE MAY BE PROMULGATED BY
STATE AGENCIES WHOSE SERVICE POPULATIONS MAY BENEFIT FROM THE IMPLEMEN-
TATION OF SUPPORTED DECISION-MAKING.
§ 2. This act shall take effect ninety days from the date that the
regulations issued in accordance with section one of this act appear in
the New York State Register, or the date such regulations are adopted,
whichever is later; and provided that the commissioner of mental
hygiene shall notify the legislative bill drafting commission upon the
occurrence of the appearance of the regulations in the New York State
Register or the date such regulations are adopted, whichever is later,
in order that the commission may maintain an accurate and timely effec-
tive data base of the official text of laws of the state of New
York in furtherance of effecting the provisions of section 44 of the
legislative law and section 70-b of the public officers law.
co-Sponsors
(D) Senate District
2021-S7107A - Details
2021-S7107A - Sponsor Memo
BILL NUMBER: S7107A
SPONSOR: MANNION
TITLE OF BILL:
An act to amend the mental hygiene law, in relation to supported deci-
sion-making by people with intellectual, developmental, cognitive and
psychosocial disabilities
PURPOSE OF THE BILL:
This proposed legislation would add Article 82 to the Mental Hygiene
Law, creating Supported Decision-Making as a less restrictive alterna-
tive to guardianship. To promote autonomy and self-determination, this
bill would legally recognize Supported Decision-Making Agreements,
allowing for decision-making supports to be formalized by individuals in
need of assistance in making decisions for themselves. It would create
obligations and corresponding immunity from liability for third parties
in order to effectuate supported decisions made in accordance with a
Supported Decision-Making Agreement. The bill would authorize the Office
for People with Developmental Disabilities to promulgate implementation
regulations and would also allow for regulations to be promulgated by
other state agencies serving a myriad of individuals who may also bene-
fit by less restrictive decision-making support, such as the Office of Children and Family Services, Office of Mental Health, State Education Department, and the Office for the Aging. SUMMARY OF PROVISIONS: The fifteen proposed subdivisions of Article 82 include: (1) a legislative purpose preamble; (2) definitions of terms used within the article; (3) provisions defining the presumption of an adult's capacity to enter into a supported decision-making agreement, and protections against using the adult's interest in or execution of a supported decision-mak- ing agreement as evidence of incapacity or the denial of services or benefits; (4) provisions defining the scope of the article, ensuring the continued availability of advance directives and access to personal information, preventing the participation of a supporter in conversations with third- party professionals from constituting a waiver of professional evidenti- ary privilege, and precluding the use of a supported decision-making agreement as a condition of participation in any activity, service, or program; (5) provisions defining the duties, responsibilities, and authority of supporters, and the limits of a supporter's role; (6) provisions describing the formation requirements of a supported decision-making agreement and setting the term of the agreement as effective until revoked by the decision-maker; (7) provisions on the requirements for revocation or amendment of a supported decision-making agreement, allowing for liberal changes to be made only by the decision-maker; (8) limitations on the eligibility of supporters, and process for resig- nation of a supporter; (9) provisions describing the requirement of a facilitation process for the extension of third-party obligations and liability protections; (10) provisions describing the form a supported decision-making agree- ment must take, including the additional requirements for extending third-party obligations and liability protections; (11) provisions describing the obligations on third parties to accept decisions made in accordance with any supported decision-making agree- ment that is validly executed following a process of facilitation as defined by regulations to be promulgated by the Office for People With Developmental Disabilities; (12) provisions limiting liability for third parties who accept deci- sions made in accordance with any supported decision-making agreement that was validly executed following a process of facilitation as defined by regulations to be promulgated by the Office for People With Develop- mental Disabilities; (13) provisions allowing supporters to be designated by a supported decision-making agreement as parties who must receive prescribed notice by any agency, entity, or person in possession of the agreement, and requiring additional releases to provide any form of notice that may include protected information; (14) provisions recognizing a third party's ability to report suspected abuse, coercion, undue influence, or financial exploitation, and ensur- ing that nothing in the article may be construed as limiting a person's existing duty to report under any other statute or regulation; (15) a direction to the Commissioner of the Office for People With Developmental Disabilities to promulgate regulations necessary to imple- ment the article and to ensure the availability of supported decision- making facilitation services required to extend the described third-par- ty obligations and protections. An additional provision to allow other agencies whose service populations may benefit from supported decision- making to promulgate regulations for its implementation. JUSTIFICATION: This legislation would encourage a means of supporting and accommodating adults in the decision-making process, allowing many the opportunity to make, communicate, and effectuate life decisions without impeding their self-determination. As a less restrictive alternative to guardianship, the bill would alleviate pressure on guardianship courts and state agen- cies by promoting the autonomy of individuals with, intellectual, devel- opmental, psychosocial, and cognitive disabilities. Moreover, by formal- izing decision-making supports for individuals living in the community, it would promote person centered care and individual civil rights and enable expanded efforts towards deinstitutionalization as required by the Supreme Court's decision in Olmstead v. LC. OPWDD consulted with Supported Decision-Making New York (SDMNY) on the drafting of this bill. SDMNY administers the 5-year Supported Decision- Making pilot program in New York in partnership with The Arc Westches- ter, New York Alliance for Inclusion & Innovation, Disability Rights New York, and CUNY Hunter College's Silberman School of Social Work. The pilot is funded in part by grants from the New York State Developmental Disability Planning Council and the Ford Foundation. Though not direct- ly consulted in the drafting of this bill, The New York City Bar Associ- ation Committee on Disability Rights has voiced support for supported decision-making legislation in New York, as has the Self-Advocacy Asso- ciation of New York State. More broadly, the American Civil Liberties Union, the Autistic Self Advocacy Network, the Vera Institute for Justice, the National Disability Rights Network, and the Burton Blatt Institute at Syracuse University College of Law, among others, have expressed support for continued supported decision-making legislative efforts around the country, including in New York State. PRIOR LEGISLATIVE HISTORY: An earlier version of this bill was proposed in the 2021 legislative session and passed unanimously in the Senate as sponsored by Senator John Mannion (S.7107). It did not leave committee in the Assembly before the 2021 legislative session concluded. The bill has recently been introduced in the Assembly by Assembly member Simon (A8586). This year's proposal includes amendments to the previous session's bill text, intended to address certain concerns raised by stakeholder groups and state entities. FISCAL IMPLICATIONS: This bill is expected to be fiscally neutral but has the potential for fiscal savings by reducing the number of guardianship petitions filed under MHL Article 81 and SCPA Article 17-A, as has been seen by certain other states with equivalent legislation. A comprehensive study on the potential for supported decision-making to provide long term fiscal savings in New York is currently being conducted by consultancy firm Stout Risius Ross. EFFECTIVE DATE: This act shall take effect ninety days from the date that the regu- lations issued in accordance with this act appear in the New York State Register, or the date such regulations are adopted, whichever is later; and provided that the commissioner of mental hygiene shall notify the legislative bill drafting commission upon the occurrence of the appear- ance of the regulations in the New York State Register or the date such regulations are adopted, whichever is later, in order that the commis- sion may maintain an accurate and timely effective data base of the official text of laws of the state of New York in furtherance of effect- ing the provisions of section 44 of the legislative law and section 70-b of the public officers law.
2021-S7107A - Bill Text download pdf
S T A T E O F N E W Y O R K
________________________________________________________________________
7107--A
Cal. No. 540
2021-2022 Regular Sessions
I N S E N A T E
June 1, 2021
___________
Introduced by Sen. MANNION -- (at request of the Office for People with
Developmental Disabilities) -- read twice and ordered printed, and
when printed to be committed to the Committee on Disabilities --
recommitted to the Committee on Disabilities in accordance with Senate
Rule 6, sec. 8 -- reported favorably from said committee, ordered to
first and second report, ordered to a third reading, amended and
ordered reprinted, retaining its place in the order of third reading
AN ACT to amend the mental hygiene law, in relation to supported deci-
sion-making by people with intellectual, developmental, cognitive and
psychosocial disabilities
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The mental hygiene law is amended by adding a new article
82 to read as follows:
ARTICLE 82
SUPPORTED DECISION-MAKING
SECTION 82.01 LEGISLATIVE FINDINGS AND PURPOSE.
82.02 DEFINITIONS.
82.03 PRESUMPTION OF CAPACITY.
82.04 SCOPE.
82.05 DUTIES, RESPONSIBILITIES, AND AUTHORITY OF SUPPORTERS.
82.06 FORMATION AND TERM OF AGREEMENT.
82.07 REVOCATION AND AMENDMENT OF AGREEMENT.
82.08 ELIGIBILITY AND RESIGNATION OF SUPPORTERS.
82.09 FACILITATION OF AGREEMENT.
82.10 FORM OF AGREEMENT.
82.11 LEGAL EFFECT OF DECISIONS MADE WITH SUPPORT AND THIRD-PAR-
TY OBLIGATIONS.
82.12 LIMITATIONS ON LIABILITY.
82.13 SUPPORTER NOTICE.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD09657-04-2
S. 7107--A 2
82.14 REPORTING ABUSE, COERCION, UNDUE INFLUENCE, OR FINANCIAL
EXPLOITATION.
82.15 RULES AND REGULATIONS.
§ 82.01 LEGISLATIVE FINDINGS AND PURPOSE.
(A) THE LEGISLATURE FINDS THAT A PERSON'S RIGHT TO MAKE THEIR OWN
DECISIONS IS CRITICAL TO THEIR AUTONOMY AND SELF-DETERMINATION. PEOPLE
WITH INTELLECTUAL, DEVELOPMENTAL, COGNITIVE AND PSYCHOSOCIAL DISABILI-
TIES ARE OFTEN DENIED THAT RIGHT BECAUSE OF STIGMA AND OUTDATED BELIEFS
ABOUT THEIR CAPABILITY. THIS RIGHT IS DENIED, DESPITE THE REALITY THAT
VERY FEW PEOPLE MAKE DECISIONS ENTIRELY ON THEIR OWN. EVERYONE USES
SUPPORTS, AS DO PEOPLE WITH DISABILITIES; WHO MAY JUST NEED MORE OR
DIFFERENT KINDS OF SUPPORTS.
(B) THE LEGISLATURE FURTHER FINDS THAT THE, NOW WELL RECOGNIZED, PRAC-
TICE OF SUPPORTED DECISION-MAKING IS A WAY IN WHICH MANY PEOPLE WITH
DISABILITIES CAN MAKE THEIR OWN DECISIONS WITH THE SUPPORT THEY NEED
FROM TRUSTED PERSONS IN THEIR LIVES, AND THAT SUPPORTED DECISION-MAKING
CAN BE A LESS RESTRICTIVE ALTERNATIVE TO GUARDIANSHIP. RECOGNIZING THAT
SUPPORTED DECISION-MAKING CAN TAKE A VARIETY OF FORMS, THE LEGISLATURE
FINDS THAT A MORE FORMAL PROCESS, RESULTING IN A SUPPORTED DECISION-MAK-
ING AGREEMENT BETWEEN THE PERSON WITH A DISABILITY (THE DECISION-MAKER)
AND THEIR SUPPORTER OR SUPPORTERS, CAN PROVIDE THE BASIS FOR REQUIRING
THIRD PARTIES, WHO MIGHT OTHERWISE QUESTION A PERSON'S LEGAL CAPACITY
BECAUSE OF THEIR DISABILITY, TO RECOGNIZE THEIR DECISIONS ON THE SAME
BASIS AS OTHERS, AND TO GRANT CORRESPONDING IMMUNITY TO SUCH PARTIES
WHEN THEY DO SO IN GOOD FAITH. WHEN THIS MORE FORMAL PROCESS IS
FOLLOWED, PEOPLE WITH DISABILITIES CAN MAKE CHOICES CONFIDENT THAT THEY
WILL BE RESPECTED BY OTHERS AND KNOWING THEY WILL BE SOLELY RESPONSIBLE
FOR THEIR OWN DECISIONS.
(C) THE LEGISLATURE FURTHER FINDS THAT SUPPORTED DECISION-MAKING AND
SUPPORTED DECISION-MAKING AGREEMENTS SHOULD BE ENCOURAGED WHEN APPROPRI-
ATE FOR PERSONS WITH DISABILITIES, AND THAT THE EXECUTION OF A SUPPORTED
DECISION-MAKING AGREEMENT SHOULD NOT DETRIMENTALLY IMPACT THE ELIGIBIL-
ITY OF A PERSON FOR OTHER SERVICES, INCLUDING ADULT PROTECTIVE SERVICES.
AT PRESENT, THE LEGISLATURE FINDS THERE IS SUFFICIENT EVIDENCE OF THE
MEANS OF PROVIDING SUPPORT TO PERSONS WITH INTELLECTUAL AND DEVELOP-
MENTAL DISABILITIES, AS DEMONSTRATED, FOR EXAMPLE, THROUGH THE RECENTLY
COMPLETED FIVE-YEAR PILOT PROJECT FUNDED BY THE NEW YORK STATE DEVELOP-
MENTAL DISABILITY PLANNING COUNCIL, TO REQUIRE THIRD-PARTY RECOGNITION
OF DECISIONS MADE PURSUANT TO SUPPORTED DECISION-MAKING AGREEMENTS MADE
THROUGH A PROCESS OF FACILITATION FOR THE DECISION-MAKER AND THEIR
SUPPORTERS. WHERE PERSONS WITH INTELLECTUAL OR DEVELOPMENTAL DISABILI-
TIES AND THEIR SUPPORTERS RECEIVE FACILITATION AND/OR EDUCATION IN THE
CREATION OF A SUPPORTED DECISION-MAKING AGREEMENT, IN ACCORDANCE WITH
REGULATIONS TO BE DRAFTED BY THE OFFICE FOR PEOPLE WITH DEVELOPMENTAL
DISABILITIES, THE LEGISLATURE WILL NOW FORMALLY RECOGNIZE THEIR LEGAL
CAPACITY TO MAKE DECISIONS ON A BASIS EQUAL WITH ALL OTHERS.
(D) THE LEGISLATURE ALSO STRONGLY URGES RELEVANT STATE AGENCIES AND
CIVIL SOCIETY TO RESEARCH AND DEVELOP APPROPRIATE AND EFFECTIVE MEANS OF
SUPPORT FOR OLDER PERSONS WITH COGNITIVE DECLINE, PERSONS WITH TRAUMATIC
BRAIN INJURIES, AND PERSONS WITH PSYCHOSOCIAL DISABILITIES, SO THAT FULL
LEGISLATIVE RECOGNITION CAN ALSO BE ACCORDED TO THE DECISIONS MADE WITH
SUPPORTED DECISION-MAKING AGREEMENTS BY PERSONS WITH SUCH CONDITIONS,
BASED ON A CONSENSUS ABOUT WHAT KINDS OF SUPPORT ARE MOST EFFECTIVE AND
HOW THEY CAN BEST BE DELIVERED.
§ 82.02 DEFINITIONS.
S. 7107--A 3
WHEN USED IN THIS ARTICLE, THE FOLLOWING TERMS SHALL HAVE THE FOLLOW-
ING MEANING, UNLESS THE CONTEXT OR SUBJECT MATTER REQUIRES A DIFFERENT
INTERPRETATION:
(A) "ABUSE" ENCOMPASSES PHYSICAL ABUSE, SEXUAL ABUSE, AND EMOTIONAL
ABUSE, AS DEFINED IN SECTION FOUR HUNDRED SEVENTY-THREE OF THE SOCIAL
SERVICES LAW.
(B) "ADULT" MEANS AN INDIVIDUAL EIGHTEEN YEARS OF AGE OR OLDER.
(C) "ADVANCE DIRECTIVE" MEANS A LEGALLY RECOGNIZED WRITTEN OR ORAL
INSTRUCTION BY AN ADULT RELATING TO THE PROVISION OF HEALTH CARE TO THE
ADULT IF AND WHEN THEY BECOME INCAPACITATED, INCLUDING BUT NOT LIMITED
TO A HEALTH CARE PROXY, A CONSENT TO THE ISSUANCE OF AN ORDER NOT TO
RESUSCITATE OR OTHER ORDERS FOR LIFE-SUSTAINING TREATMENT RECORDED IN A
PATIENT'S MEDICAL RECORD, OR OTHER LEGALLY-RECOGNIZED STATEMENTS OF
WISHES OR BELIEFS.
(D) "DECISION-MAKER" MEANS AN ADULT WHO HAS EXECUTED, OR SEEKS TO
EXECUTE, A SUPPORTED DECISION-MAKING AGREEMENT.
(E) "FINANCIAL EXPLOITATION" HAS THE MEANING GIVEN IN SECTION FOUR
HUNDRED SEVENTY-THREE OF THE SOCIAL SERVICES LAW.
(F) "GOOD FAITH" MEANS HONEST IN FACT AND IN THE OBSERVANCE OF REASON-
ABLE STANDARDS OF FAIR DEALING.
(G) "NEGLECT" HAS THE MEANING DEFINED IN PARAGRAPH (D) OF SUBDIVISION
ONE OF SECTION FOUR HUNDRED SEVENTY-THREE OF THE SOCIAL SERVICES LAW.
(H) "PHYSICAL COERCION" MEANS TO PLACE UNDER DURESS, MENACE, OR
THREATEN PHYSICAL VIOLENCE OR IMPRISONMENT.
(I) "SUPPORTED DECISION-MAKING" MEANS A WAY BY WHICH A DECISION-MAKER
UTILIZES SUPPORT FROM TRUSTED PERSONS IN THEIR LIFE, IN ORDER TO MAKE
THEIR OWN DECISIONS ABOUT THEIR LIFE, INCLUDING, BUT NOT LIMITED TO,
DECISIONS RELATED TO WHERE AND WITH WHOM THE DECISION-MAKER WANTS TO
LIVE; DECISIONS ABOUT FINANCES; THE SERVICES, SUPPORTS, AND HEALTH CARE
THE DECISION-MAKER WANTS TO RECEIVE; AND WHERE THE DECISION-MAKER WANTS
TO WORK.
(J) "SUPPORTED DECISION-MAKING AGREEMENT" IS AN AGREEMENT A DECISION-
MAKER ENTERS INTO WITH ONE OR MORE SUPPORTERS UNDER THIS SECTION THAT
DESCRIBES HOW THE DECISION-MAKER USES SUPPORTED DECISION-MAKING TO MAKE
THEIR OWN DECISIONS.
(K) "SUPPORTER" MEANS AN ADULT WHO HAS VOLUNTARILY ENTERED INTO A
SUPPORTED DECISION-MAKING AGREEMENT WITH A DECISION-MAKER, AGREEING TO
ASSIST THE DECISION-MAKER IN MAKING THEIR OWN DECISIONS AS PRESCRIBED BY
THE SUPPORTED DECISION-MAKING AGREEMENT, AND WHO IS NOT INELIGIBLE UNDER
SECTION 82.08 OF THIS ARTICLE.
(L) "UNDUE INFLUENCE" MEANS MORAL OR MENTAL COERCION THAT LEADS SOME-
ONE TO CARRY OUT THE WISHES OF ANOTHER INSTEAD OF THEIR OWN BECAUSE THEY
ARE UNABLE TO REFUSE OR RESIST.
§ 82.03 PRESUMPTION OF CAPACITY.
(A) FOR THE PURPOSES OF THIS ARTICLE, EVERY ADULT SHALL BE PRESUMED TO
HAVE THE CAPACITY TO ENTER INTO A SUPPORTED DECISION-MAKING AGREEMENT,
UNLESS THAT ADULT HAS A LEGAL GUARDIAN, APPOINTED BY A COURT OF COMPE-
TENT JURISDICTION, WHOSE GRANTED AUTHORITY IS IN CONFLICT WITH THE
PROPOSED SUPPORTED DECISION-MAKING AGREEMENT. THIS PRESUMPTION MAY BE
REBUTTED ONLY BY CLEAR AND CONVINCING EVIDENCE.
(B) CAPACITY SHALL INCLUDE CAPACITY WITH DECISION-MAKING SUPPORT
AND/OR ACCOMMODATIONS.
(C) A DIAGNOSIS OF INTELLECTUAL, DEVELOPMENTAL, OR OTHER DISABILITY OR
CONDITION SHALL NOT CONSTITUTE EVIDENCE OF INCAPACITY.
(D) THE MANNER IN WHICH AN ADULT COMMUNICATES WITH OTHERS SHALL NOT
CONSTITUTE EVIDENCE OF INCAPACITY.
S. 7107--A 4
(E) NEITHER THE EXECUTION OF A SUPPORTED DECISION-MAKING AGREEMENT BY
AN INDIVIDUAL, NOR THE INTEREST IN OR WISH TO EXECUTE A SUPPORTED DECI-
SION-MAKING AGREEMENT BY AN INDIVIDUAL, NOR THE FAILURE OF AN INDIVIDUAL
TO EXECUTE A SUPPORTED DECISION-MAKING AGREEMENT MAY BE USED OR CONSID-
ERED AS EVIDENCE THAT THE INDIVIDUAL LACKS CAPACITY, OR TO DENY THE
DECISION-MAKER BENEFITS TO WHICH THEY ARE OTHERWISE ENTITLED, INCLUDING
ADULT PROTECTIVE SERVICES.
(F) A DECISION-MAKER MAY MAKE AND EXECUTE A SUPPORTED DECISION-MAKING
AGREEMENT, IF THE DECISION-MAKER UNDERSTANDS THAT THEY ARE MAKING AND
EXECUTING AN AGREEMENT WITH THEIR CHOSEN SUPPORTERS AND THAT THEY ARE
DOING SO VOLUNTARILY.
§ 82.04 SCOPE.
(A) IF A DECISION-MAKER VOLUNTARILY ENTERS INTO A SUPPORTED DECISION-
MAKING AGREEMENT WITH ONE OR MORE SUPPORTERS, THE DECISION-MAKER MAY, IN
THE AGREEMENT, AUTHORIZE THE SUPPORTER TO PROVIDE SUPPORT TO THEM IN
MAKING THEIR OWN DECISIONS IN AREAS THEY CHOOSE, INCLUDING, BUT NOT
LIMITED TO: GATHERING INFORMATION, UNDERSTANDING AND INTERPRETING INFOR-
MATION, WEIGHING OPTIONS AND ALTERNATIVES TO A DECISION, CONSIDERING
THE CONSEQUENCES OF MAKING A DECISION OR NOT MAKING IT, PARTICIPATING IN
CONVERSATIONS WITH THIRD PARTIES IF THE DECISION-MAKER IS PRESENT AND
REQUESTS THEIR PARTICIPATION, COMMUNICATING THE DECISION-MAKER'S DECI-
SION TO THIRD PARTIES IF THE DECISION-MAKER IS PRESENT AND REQUESTS
THEIR PARTICIPATION, AND PROVIDING THE DECISION-MAKER SUPPORT IN IMPLE-
MENTING THE DECISION-MAKER'S DECISION.
(B) NOTHING IN THIS ARTICLE, NOR THE EXISTENCE OF AN EXECUTED
SUPPORTED DECISION-MAKING AGREEMENT, SHALL PRECLUDE THE DECISION-MAKER
FROM ACTING INDEPENDENTLY OF THE SUPPORTED DECISION-MAKING AGREEMENT OR
EXECUTING, WITH OR WITHOUT THE ASSISTANCE OF SUPPORTERS UNDER A
SUPPORTED DECISION-MAKING AGREEMENT, A POWER OF ATTORNEY UNDER TITLE
FIFTEEN OF ARTICLE FIVE OF THE GENERAL OBLIGATIONS LAW, HEALTH CARE
PROXY UNDER ARTICLE TWENTY-NINE-C OF THE PUBLIC HEALTH LAW, OR OTHER
ADVANCE DIRECTIVE.
(C) NOTWITHSTANDING THE EXISTENCE OF A SUPPORTED DECISION-MAKING
AGREEMENT, A DECISION-MAKER SHALL CONTINUE TO HAVE UNRESTRICTED ACCESS
TO THEIR PERSONAL INFORMATION WITHOUT THE ASSISTANCE OF A SUPPORTER.
(D) NOTWITHSTANDING THE EXISTENCE OF A SUPPORTED DECISION-MAKING
AGREEMENT, A DECISION-MAKER MAY REQUEST AND RECEIVE ASSISTANCE IN MAKING
ANY DECISION THAT IS NOT COVERED UNDER THE SUPPORTED DECISION-MAKING
AGREEMENT AT ANY TIME AND FROM ANY PERSON, REGARDLESS OF WHETHER THAT
PERSON IS DESIGNATED AS A SUPPORTER IN THE SUPPORTED DECISION-MAKING
AGREEMENT.
(E) A SUPPORTED DECISION-MAKING AGREEMENT MADE PURSUANT TO THIS ARTI-
CLE MAY BE EVIDENCE THAT THE DECISION-MAKER HAS A LESS RESTRICTIVE
ALTERNATIVE TO GUARDIANSHIP IN PLACE.
(F) THE AVAILABILITY OF SUPPORTED DECISION-MAKING AGREEMENTS IS NOT
INTENDED TO LIMIT THE INFORMAL USE OF SUPPORTED DECISION-MAKING, OR TO
PRECLUDE JUDICIAL CONSIDERATION OF SUCH INFORMAL ARRANGEMENTS AS LESS
RESTRICTIVE ALTERNATIVES TO GUARDIANSHIP.
(G) EXECUTION OF A SUPPORTED DECISION-MAKING AGREEMENT MAY NOT BE A
CONDITION OF PARTICIPATION IN ANY ACTIVITY, SERVICE, OR PROGRAM.
(H) IF A DECISION-MAKER SEEKS FROM ANY PERSON PROFESSIONAL ADVICE THAT
WOULD BE OTHERWISE COVERED BY EVIDENTIARY PRIVILEGE IN ACCORDANCE WITH
SECTIONS FORTY-FIVE HUNDRED THREE, FORTY-FIVE HUNDRED FOUR, FORTY-FIVE
HUNDRED SEVEN, FORTY-FIVE HUNDRED EIGHT AND FORTY-FIVE HUNDRED TEN OF
THE CIVIL PRACTICE LAW AND RULES, THE INCLUSION IN THE CONVERSATION OF A
SUPPORTER AUTHORIZED BY THE SUPPORTED DECISION-MAKING AGREEMENT TO
S. 7107--A 5
PROVIDE SUPPORT IN THE AREA IN WHICH THE DECISION-MAKER SEEKS THE
PROFESSIONAL ADVICE SHALL NOT CONSTITUTE A WAIVER OF THAT PRIVILEGE.
(I) NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, NOTH-
ING WITHIN THIS ARTICLE SHALL BE CONSTRUED TO PROHIBIT ELIGIBILITY OF A
DECISION-MAKER FOR RECEIPT OF SERVICES OR SUPPORTS THAT THEY WOULD HAVE
OTHERWISE BEEN ENTITLED, INCLUDING ADULT PROTECTIVE SERVICES, ABSENT
ENTERING INTO A SUPPORTED DECISION-MAKING AGREEMENT UNDER THE PROVISIONS
OF THIS ARTICLE.
§ 82.05 DUTIES, RESPONSIBILITIES, AND AUTHORITY OF SUPPORTERS.
(A) A SUPPORTER MUST:
1. RESPECT THE DECISION-MAKER'S RIGHT TO MAKE A DECISION, EVEN WHEN
THE SUPPORTER DISAGREES WITH THE DECISION OR BELIEVES IT IS NOT IN THE
DECISION-MAKER'S BEST INTERESTS;
2. ACT HONESTLY, DILIGENTLY, AND IN GOOD FAITH;
3. ACT WITHIN THE SCOPE SET FORTH IN THE EXECUTED SUPPORTED DECISION-
MAKING AGREEMENT;
4. AVOID CONFLICTS OF INTEREST; AND
5. NOTIFY THE DECISION-MAKER IN WRITING, AND IN A MANNER THE DECI-
SION-MAKER CAN UNDERSTAND, OF THE SUPPORTER'S INTENT TO RESIGN AS A
SUPPORTER.
(B) A SUPPORTER IS PROHIBITED FROM:
1. MAKING DECISIONS FOR THE DECISION-MAKER, EXCEPT TO THE EXTENT
OTHERWISE GRANTED IN AN ADVANCE DIRECTIVE;
2. EXERTING UNDUE INFLUENCE UPON THE DECISION-MAKER;
3. PHYSICALLY COERCING THE DECISION-MAKER;
4. OBTAINING, WITHOUT THE CONSENT OF THE DECISION-MAKER, INFORMATION
ACQUIRED FOR A PURPOSE OTHER THAN ASSISTING THE DECISION-MAKER IN MAKING
A DECISION AUTHORIZED BY THE SUPPORTED DECISION-MAKING AGREEMENT;
5. OBTAINING, WITHOUT THE CONSENT OF THE DECISION-MAKER, OR AS
EXPRESSLY GRANTED BY THE SUPPORTED DECISION-MAKING AGREEMENT, AND ACCOM-
PANIED BY AN APPROPRIATE RELEASE, NONPUBLIC PERSONAL INFORMATION AS
DEFINED IN 15 U.S.C. § 6809(4)(A), OR CLINICAL RECORDS OR INFORMATION
UNDER SUBDIVISION (C) OF SECTION 33.13 OF THIS CHAPTER; AND
6. COMMUNICATING A DECISION-MAKER'S DECISION TO A THIRD-PARTY WITHOUT
THE PARTICIPATION AND PRESENCE OF THE DECISION-MAKER.
(C) THE RELATIONSHIP BETWEEN A DECISION-MAKER AND A SUPPORTER IS ONE
OF TRUST AND CONFIDENCE AND SERVES TO PRESERVE THE DECISION-MAKING
AUTHORITY OF THE DECISION-MAKER.
(D) A SUPPORTER SHALL NOT BE CONSIDERED A SURROGATE OR SUBSTITUTE
DECISION MAKER FOR THE DECISION-MAKER AND SHALL NOT HAVE THE AUTHORITY
TO SIGN LEGAL DOCUMENTS ON BEHALF OF THE DECISION-MAKER OR BIND THE
DECISION-MAKER TO A LEGAL AGREEMENT, BUT MAY, IF SUCH AUTHORITY IS
EXPRESSLY GRANTED IN THE SUPPORTED DECISION-MAKING AGREEMENT, PROVIDE
CO-SIGNATURE TOGETHER WITH THE DECISION-MAKER ACKNOWLEDGING THE RECEIPT
OF STATEMENTS OF RIGHTS AND RESPONSIBILITIES IN ORDER TO PERMIT PARTIC-
IPATION IN SUCH PROGRAMS OR ACTIVITIES THAT THE DECISION-MAKER HAS
COMMUNICATED A CHOICE TO PARTICIPATE IN.
(E) IF EXPRESSLY GRANTED BY THE SUPPORTED DECISION-MAKING AGREEMENT,
AND THE DECISION-MAKER HAS SIGNED AN APPROPRIATE RELEASE, THE SUPPORTER
MAY ASSIST THE DECISION-MAKER IN OBTAINING EDUCATIONAL RECORDS UNDER THE
FAMILY EDUCATIONAL RIGHTS AND PRIVACY ACT OF 1974 (20 U.S.C. § 1232G),
PROTECTED HEALTH INFORMATION UNDER THE HEALTH INSURANCE PORTABILITY AND
ACCOUNTABILITY ACT OF 1996 (45 CFR §§ 164.502, 164.508), CLINICAL
RECORDS AND INFORMATION UNDER SUBDIVISION (C) OF SECTION 33.13 OF THIS
CHAPTER, OR PATIENT INFORMATION UNDER SUBDIVISIONS TWO AND THREE OF
SECTION EIGHTEEN OF THE PUBLIC HEALTH LAW.
S. 7107--A 6
(F) A SUPPORTER SHALL ENSURE THE INFORMATION OBTAINED UNDER SUBDIVI-
SION (E) OF THIS SECTION IS KEPT PRIVILEGED AND CONFIDENTIAL, AS APPLI-
CABLE, AND IS NOT SUBJECT TO UNAUTHORIZED ACCESS, USE, OR DISCLOSURE.
§ 82.06 FORMATION AND TERM OF AGREEMENT.
(A) AN ADULT MAY ENTER INTO A SUPPORTED DECISION-MAKING AGREEMENT AT
ANY TIME IF THE ADULT ENTERS INTO THE AGREEMENT VOLUNTARILY.
(B) A DECISION-MAKER MAY SIGN A SUPPORTED DECISION-MAKING AGREEMENT IN
ANY MANNER, INCLUDING ELECTRONIC SIGNATURES PERMITTED UNDER ARTICLE
THREE OF THE STATE TECHNOLOGY LAW.
(C) A SUPPORTED DECISION-MAKING AGREEMENT FORMED UNDER THE PROVISIONS
OF THIS ARTICLE SHALL REMAIN IN EFFECT UNLESS AND UNTIL REVOKED BY THE
DECISION-MAKER.
§ 82.07 REVOCATION AND AMENDMENT OF AGREEMENT.
(A) THE DECISION-MAKER MAY REVOKE ALL OR PART OF A SUPPORTED DECI-
SION-MAKING AGREEMENT BY NOTIFYING THE SUPPORTERS ORALLY OR IN WRITING,
OR BY ANY OTHER ACT EVINCING A SPECIFIC INTENT TO REVOKE THE AGREEMENT.
THE FAILURE OF THE DECISION-MAKER TO NOTIFY SUPPORTERS SHALL NOT INVALI-
DATE THE REVOCATION OF ALL OR PART OF THE SUPPORTED DECISION-MAKING
AGREEMENT.
(B) A DECISION-MAKER MAY AMEND A SUPPORTED DECISION-MAKING AGREEMENT
AT ANY TIME FOR ANY REASON, SUBJECT TO THE REQUIREMENTS OF THIS SECTION.
THE DECISION-MAKER SHALL NOTIFY ALL SUPPORTERS OF ANY AMENDMENT MADE TO
THE SUPPORTED DECISION-MAKING AGREEMENT, BUT THE FAILURE TO DO SO SHALL
NOT INVALIDATE THE AMENDMENT.
§ 82.08 ELIGIBILITY AND RESIGNATION OF SUPPORTERS.
(A) A SUPPORTER SHALL BE ANY ADULT CHOSEN BY THE DECISION-MAKER; IF
THE SUPPORTER CHOSEN BY THE DECISION-MAKER IS AN EMPLOYEE OF A PROVIDER
FROM WHOM THE DECISION-MAKER RECEIVES SERVICES, THE EMPLOYEE AND THE
PROVIDER SHALL FOLLOW THE REQUIREMENTS SET OUT IN REGULATIONS PROMULGAT-
ED BY THE OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES, OR OTHER
APPROPRIATE REGULATORY BODY WHICH ADDRESS THOSE CIRCUMSTANCES, WITH
ATTENTION PAID TO RELATIVE LABOR LAW AND EMPLOYMENT OBLIGATIONS AND
POSSIBLE CONFLICTS OF INTEREST OR THE APPEARANCE OF A CONFLICT OF INTER-
EST.
(B) AN INDIVIDUAL WHO HAS BEEN CHOSEN BY THE DECISION-MAKER TO BE A
SUPPORTER, OR WHO HAS ENTERED INTO A SUPPORTED DECISION-MAKING AGREEMENT
AS A SUPPORTER, SHALL BE DEEMED INELIGIBLE TO ACT, OR CONTINUE TO SERVE
AS SUPPORTER UPON THE OCCURRENCE OF ANY OF THE FOLLOWING:
1. A COURT AUTHORIZES A PROTECTIVE ORDER OR RESTRAINING ORDER AGAINST
THE SUPPORTER ON REQUEST OF OR ON BEHALF OF THE DECISION-MAKER; OR
2. THE LOCAL DEPARTMENT OF SOCIAL SERVICES HAS FOUND THAT THE SUPPORT-
ER HAS COMMITTED ABUSE, NEGLECT, FINANCIAL EXPLOITATION, OR PHYSICAL
COERCION AGAINST THE DECISION-MAKER AS SUCH TERMS ARE DEFINED IN SECTION
82.02 OF THIS ARTICLE.
(C) A SUPPORTER MAY RESIGN AS SUPPORTER BY WRITTEN OR ORAL NOTICE TO
THE DECISION-MAKER AND THE REMAINING SUPPORTERS.
(D) IF THE SUPPORTED DECISION-MAKING AGREEMENT INCLUDES MORE THAN ONE
SUPPORTER OR IS AMENDED TO REPLACE THE SUPPORTER WHO IS INELIGIBLE UNDER
SUBDIVISION (B) OF THIS SECTION OR RESIGNS UNDER SUBDIVISION (C) OF THIS
SECTION, THE SUPPORTED DECISION-MAKING AGREEMENT SHALL SURVIVE FOR THE
REMAINING SUPPORTERS, UNLESS IT IS OTHERWISE REVOKED UNDER SECTION 82.07
OF THIS ARTICLE.
(E) IF THE SUPPORTED DECISION-MAKING AGREEMENT DOES NOT INCLUDE MORE
THAN ONE SUPPORTER, AND IS NOT AMENDED TO REPLACE THE SUPPORTER WHO
BECOMES INELIGIBLE UNDER SUBDIVISION (B) OF THIS SECTION OR RESIGNS
S. 7107--A 7
UNDER SUBDIVISION (C) OF THIS SECTION, THE SUPPORTED DECISION-MAKING
AGREEMENT SHALL BE CONSIDERED TERMINATED.
§ 82.09 FACILITATION OF AGREEMENT.
THE PROVISIONS OF SECTION 82.11 AND SUBDIVISIONS (B) THROUGH (D) OF
SECTION 82.12 OF THIS ARTICLE SHALL ONLY APPLY IN CIRCUMSTANCES WHERE A
DECISION IS MADE BY A DECISION-MAKER PURSUANT TO A SUPPORTED DECISION-
MAKING AGREEMENT CREATED IN ACCORDANCE WITH THIS ARTICLE AND FOLLOWING A
RECOGNIZED SUPPORTED DECISION-MAKING FACILITATION OR EDUCATION PROCESS
AS DEFINED AND PRESCRIBED BY REGULATIONS PROMULGATED BY THE OFFICE FOR
PEOPLE WITH DEVELOPMENTAL DISABILITIES.
§ 82.10 FORM OF AGREEMENT.
(A) A SUPPORTED DECISION-MAKING AGREEMENT MAY BE IN ANY FORM CONSIST-
ENT WITH THE REQUIREMENTS SET FORTH IN THIS ARTICLE.
(B) A SUPPORTED DECISION-MAKING AGREEMENT MUST:
1. BE IN WRITING;
2. BE DATED;
3. DESIGNATE THE DECISION-MAKER, AND AT LEAST ONE SUPPORTER;
4. LIST THE CATEGORIES OF DECISIONS WITH WHICH A SUPPORTER IS AUTHOR-
IZED TO ASSIST THE DECISION-MAKER;
5. LIST THE KINDS OF SUPPORT THAT EACH SUPPORTER MAY GIVE FOR EACH
AREA IN WHICH THEY ARE DESIGNATED AS A SUPPORTER;
6. CONTAIN AN ATTESTATION THAT THE SUPPORTERS AGREE TO HONOR THE RIGHT
OF THE DECISION-MAKER TO MAKE THEIR OWN DECISIONS IN THE WAYS AND AREAS
SPECIFIED IN THE AGREEMENT, RESPECT THE DECISION-MAKER'S DECISIONS, AND,
FURTHER, THAT THEY WILL NOT MAKE DECISIONS FOR THE DECISION-MAKER;
7. STATE THAT THE DECISION-MAKER MAY CHANGE, AMEND, OR REVOKE THE
SUPPORTED DECISION-MAKING AGREEMENT AT ANY TIME FOR ANY REASON, SUBJECT
TO THE REQUIREMENTS OF SECTION 82.06 OF THIS ARTICLE;
8. BE SIGNED BY ALL DESIGNATED SUPPORTERS; AND
9. BE EXECUTED OR ENDORSED BY THE DECISION-MAKER IN THE PRESENCE OF AT
LEAST TWO ADULT WITNESSES WHO ARE NOT ALSO DESIGNATED AS SUPPORTERS, OR
WITH THE ATTESTATION OF A NOTARY PUBLIC.
(C) A SUPPORTED DECISION-MAKING AGREEMENT MAY:
1. APPOINT MORE THAN ONE SUPPORTER;
2. AUTHORIZE A SUPPORTER TO OBTAIN PERSONAL INFORMATION AS DESCRIBED
IN SUBDIVISION (E) OF SECTION 82.05 OF THIS ARTICLE;
3. AUTHORIZE A SUPPORTER TO SHARE INFORMATION WITH ANY OTHER SUPPORTER
OR OTHERS NAMED IN THE AGREEMENT; OR
4. DETAIL ANY OTHER LIMITATIONS ON THE SCOPE OF A SUPPORTER'S ROLE
THAT THE DECISION-MAKER DEEMS IMPORTANT.
(D) IN ORDER TO BE SUBJECT TO THE PROVISIONS OF SECTION 82.11 AND
SUBDIVISIONS (B) THROUGH (D) OF SECTION 82.12 OF THIS ARTICLE, A
SUPPORTED DECISION-MAKING AGREEMENT MUST ALSO:
1. BE SIGNED BY A FACILITATOR OR EDUCATOR;
2. INCLUDE A STATEMENT THAT THE SUPPORTED DECISION-MAKING AGREEMENT
WAS MADE IN ACCORDANCE WITH A RECOGNIZED FACILITATION AND/OR EDUCATION
PROCESS; AND
3. INCLUDE AN ATTACHED ATTESTATION BY THE DECISION-MAKER THAT A
PARTICULAR DECISION HAS BEEN MADE IN ACCORDANCE WITH THE SUPPORT
DESCRIBED IN THE SUPPORTED DECISION-MAKING AGREEMENT.
§ 82.11 LEGAL EFFECT OF DECISIONS MADE WITH SUPPORT AND THIRD-PARTY
OBLIGATIONS.
(A) THIS SECTION SHALL APPLY ONLY TO DECISIONS MADE PURSUANT TO
SUPPORTED DECISION-MAKING AGREEMENTS CREATED IN ACCORDANCE WITH THIS
ARTICLE AND FOLLOWING A RECOGNIZED SUPPORTED DECISION-MAKING FACILI-
TATION OR EDUCATION PROCESS, AS PRESCRIBED BY REGULATIONS GOVERNING THE
S. 7107--A 8
FACILITATION AND EDUCATION PROCESSES PROMULGATED BY THE OFFICE FOR
PEOPLE WITH DEVELOPMENTAL DISABILITIES.
(B) A DECISION OR REQUEST MADE OR COMMUNICATED BY A DECISION-MAKER
WITH THE ASSISTANCE OF A SUPPORTER IN ACCORDANCE WITH THE PROVISIONS OF
A SUPPORTED DECISION-MAKING AGREEMENT MUST, NOTWITHSTANDING ANY OTHER
PROVISION OF LAW, BE RECOGNIZED AS THE DECISION OR REQUEST OF THE DECI-
SION-MAKER AND MAY BE ENFORCED BY THE DECISION-MAKER IN LAW OR EQUITY ON
THE SAME BASIS AS ALL OTHERS.
(C) A PERSON, ENTITY, OR AGENCY REQUIRED TO RECOGNIZE AND HONOR A
DECISION MADE PURSUANT TO A SUPPORTED DECISION-MAKING AGREEMENT AUTHOR-
IZED BY THIS SECTION MAY REQUIRE THE DECISION-MAKER TO EXECUTE OR
ENDORSE AN ATTESTATION, AS PROVIDED IN PARAGRAPH THREE OF SUBDIVISION
(D) OF SECTION 82.10 OF THIS ARTICLE, AS A CONDITION OF RECOGNIZING AND
HONORING THE DECISION.
(D) A PERSON, ENTITY, OR AGENCY THAT RECEIVES A SUPPORTED DECISION-
MAKING AGREEMENT MUST HONOR A DECISION MADE IN ACCORDANCE WITH THE
AGREEMENT, UNLESS THE PERSON, ENTITY, OR AGENCY HAS SUBSTANTIAL CAUSE TO
BELIEVE THE SUPPORTED DECISION-MAKING AGREEMENT HAS BEEN REVOKED, OR THE
DECISION-MAKER IS BEING ABUSED, COERCED, UNDULY INFLUENCED, OR FINAN-
CIALLY EXPLOITED BY THE SUPPORTER, OR THAT THE DECISION WILL CAUSE THE
DECISION-MAKER SUBSTANTIAL AND IMMINENT PHYSICAL OR FINANCIAL HARM.
§ 82.12 LIMITATIONS ON LIABILITY.
(A) SUBDIVISIONS (B), (C) AND (D) OF THIS SECTION SHALL APPLY ONLY TO
DECISIONS MADE PURSUANT TO SUPPORTED DECISION-MAKING AGREEMENTS CREATED
IN ACCORDANCE WITH THIS ARTICLE AND FOLLOWING A RECOGNIZED SUPPORTED
DECISION-MAKING FACILITATION OR EDUCATION PROCESS, AS PRESCRIBED BY
REGULATIONS GOVERNING THE FACILITATION AND EDUCATION PROCESSES PROMUL-
GATED BY THE OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES.
(B) A PERSON SHALL NOT BE SUBJECT TO CRIMINAL OR CIVIL LIABILITY AND
SHALL NOT BE DETERMINED TO HAVE ENGAGED IN PROFESSIONAL MISCONDUCT FOR
AN ACT OR OMISSION IF THE ACT OR OMISSION IS DONE IN GOOD FAITH AND IN
RELIANCE ON A DECISION MADE BY A DECISION-MAKER PURSUANT TO A DULY
EXECUTED SUPPORTED DECISION-MAKING AGREEMENT CREATED IN ACCORDANCE WITH
THIS ARTICLE.
(C) ANY HEALTH CARE PROVIDER THAT PROVIDES HEALTH CARE BASED ON THE
CONSENT OF A DECISION-MAKER, GIVEN WITH SUPPORT OR ASSISTANCE PROVIDED
THROUGH A DULY EXECUTED SUPPORTED DECISION-MAKING AGREEMENT CREATED IN
ACCORDANCE WITH THIS ARTICLE, SHALL BE IMMUNE FROM ANY ACTION ALLEGING
THAT THE DECISION-MAKER LACKED CAPACITY TO PROVIDE INFORMED CONSENT,
UNLESS THE ENTITY, CUSTODIAN, OR ORGANIZATION HAD ACTUAL KNOWLEDGE OR
NOTICE THAT THE DECISION-MAKER HAD REVOKED THE SUPPORTED DECISION-MAKING
AGREEMENT, OR THAT THE SUPPORTER HAD COMMITTED ABUSE, PHYSICAL COERCION,
UNDUE INFLUENCE, OR FINANCIAL EXPLOITATION WITH RESPECT TO THE DECISION
TO GRANT CONSENT.
(D) ANY PUBLIC OR PRIVATE ENTITY, CUSTODIAN, OR ORGANIZATION THAT
DISCLOSES PERSONAL INFORMATION ABOUT A DECISION-MAKER IN RELIANCE ON THE
TERMS OF A DULY EXECUTED SUPPORTED DECISION-MAKING AGREEMENT CREATED IN
ACCORDANCE WITH THIS ARTICLE, TO A SUPPORTER AUTHORIZED BY THE TERMS OF
THE SUPPORTED DECISION-MAKING AGREEMENT TO ASSIST THE DECISION-MAKER IN
ACCESSING, COLLECTING, OR OBTAINING THAT INFORMATION UNDER SUBDIVISION
(E) OF SECTION 82.05 OF THIS ARTICLE, SHALL BE IMMUNE FROM ANY ACTION
ALLEGING THAT IT IMPROPERLY OR UNLAWFULLY DISCLOSED SUCH INFORMATION TO
THE SUPPORTER UNLESS THE ENTITY, CUSTODIAN, OR ORGANIZATION HAD ACTUAL
KNOWLEDGE THAT THE DECISION-MAKER HAD REVOKED SUCH AUTHORIZATION.
S. 7107--A 9
(E) THIS SECTION MAY NOT BE CONSTRUED TO PROVIDE IMMUNITY FROM ACTIONS
ALLEGING THAT A HEALTH CARE PROVIDER, OR OTHER THIRD-PARTY, HAS DONE ANY
OF THE FOLLOWING:
1. CAUSED PERSONAL INJURY AS A RESULT OF A NEGLIGENT, RECKLESS, OR
INTENTIONAL ACT;
2. ACTED INCONSISTENTLY WITH THE EXPRESSED WISHES OF A DECISION-MAKER;
3. FAILED TO PROVIDE INFORMATION TO EITHER DECISION-MAKER OR THEIR
SUPPORTER THAT WOULD BE NECESSARY FOR INFORMED CONSENT; OR
4. OTHERWISE ACTED INCONSISTENTLY WITH APPLICABLE LAW.
(F) THE EXISTENCE OR AVAILABILITY OF A SUPPORTED DECISION-MAKING
AGREEMENT DOES NOT RELIEVE A HEALTH CARE PROVIDER, OR OTHER THIRD-PARTY,
OF ANY LEGAL OBLIGATION TO PROVIDE SERVICES TO INDIVIDUALS WITH DISABIL-
ITIES, INCLUDING THE OBLIGATION TO PROVIDE REASONABLE ACCOMMODATIONS OR
AUXILIARY AIDS AND SERVICES, INCLUDING, BUT NOT LIMITED TO, INTERPRETA-
TION SERVICES AND COMMUNICATION SUPPORTS TO INDIVIDUALS WITH DISABILI-
TIES UNDER THE FEDERAL AMERICANS WITH DISABILITIES ACT (42 U.S.C. §
12101).
§ 82.13 SUPPORTER NOTICE.
(A) IF ANY STATE OR MUNICIPAL LAW REQUIRES THAT AN AGENCY, ENTITY, OR
PERSON PROVIDE A PRESCRIBED NOTICE TO A DECISION-MAKER, AND THE AGENCY,
ENTITY, OR PERSON REQUIRED TO PROVIDE SUCH NOTICE HAS RECEIVED A
SUPPORTED DECISION-MAKING AGREEMENT FROM A DECISION-MAKER THAT SPECIFIES
THAT A SUPPORTER IS ALSO TO RECEIVE A COPY OF ANY SUCH NOTICE, THEN THE
AGENCY, ENTITY, OR PERSON IN POSSESSION OF THE SUPPORTED DECISION-MAKING
AGREEMENT SHALL ALSO PROVIDE THE SPECIFIED SUPPORTER WITH A COPY OF SUCH
NOTICE.
(B) NOTWITHSTANDING THE PROVISIONS OF THIS SUBSECTION, IF ANY STATE OR
MUNICIPAL LAW REQUIRES THAT AN AGENCY, ENTITY, OR PERSON PROVIDE A
PRESCRIBED NOTICE TO A DECISION-MAKER AND SUCH NOTICE INCLUDES PROTECTED
INFORMATION, INCLUDING PRIVATE HEALTH INFORMATION OR EDUCATIONAL RECORDS
PROTECTED BY STATE OR FEDERAL LAW, SUCH NOTICE SHALL NOT BE PROVIDED TO
THE SPECIFIED SUPPORTER UNLESS THE SUPPORTED DECISION-MAKING AGREEMENT
IS ACCOMPANIED BY A RELEASE AUTHORIZING THE SPECIFIED SUPPORTER TO
OBTAIN THE PROTECTED INFORMATION.
§ 82.14 REPORTING ABUSE, COERCION, UNDUE INFLUENCE, OR FINANCIAL EXPLOI-
TATION.
(A) ANY PERSON WHO RECEIVES A COPY OF OR AN ORIGINAL SUPPORTED DECI-
SION-MAKING AGREEMENT AND HAS CAUSE TO BELIEVE THE DECISION-MAKER IS
BEING ABUSED, PHYSICALLY COERCED, OR FINANCIALLY EXPLOITED BY A SUPPORT-
ER, MAY REPORT THE ALLEGED ABUSE, PHYSICAL COERCION, OR FINANCIAL
EXPLOITATION TO ADULT PROTECTIVE SERVICES PURSUANT TO SECTION FOUR
HUNDRED SEVENTY-THREE OF THE SOCIAL SERVICES LAW.
(B) NOTHING IN THIS SECTION MAY BE CONSTRUED AS ELIMINATING OR LIMIT-
ING A PERSON'S DUTY OR REQUIREMENT TO REPORT UNDER ANY OTHER STATUTE OR
REGULATION.
§ 82.15 RULES AND REGULATIONS.
(A) THE COMMISSIONER OF THE OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISA-
BILITIES SHALL PROMULGATE WITHIN ONE YEAR OF THE PASSAGE OF THIS ACT THE
RULES AND REGULATIONS NECESSARY TO IMPLEMENT THIS ARTICLE FOR ADULTS WHO
RECEIVE OR ARE ELIGIBLE TO RECEIVE SERVICES THAT ARE OPERATED, CERTI-
FIED, FUNDED OR APPROVED BY THE OFFICE FOR PEOPLE WITH DEVELOPMENTAL
DISABILITIES.
(B) ADDITIONAL REGULATIONS RELATED TO THIS ARTICLE MAY BE PROMULGATED
BY STATE AGENCIES WHOSE SERVICE POPULATIONS MAY BENEFIT FROM THE IMPLE-
MENTATION OF SUPPORTED DECISION-MAKING.
S. 7107--A 10
§ 2. This act shall take effect ninety days from the date that the
regulations issued in accordance with section one of this act appear in
the New York State Register, or the date such regulations are adopted,
whichever is later; and provided that the commissioner of mental
hygiene shall notify the legislative bill drafting commission upon the
occurrence of the appearance of the regulations in the New York State
Register or the date such regulations are adopted, whichever is later,
in order that the commission may maintain an accurate and timely effec-
tive data base of the official text of laws of the state of New
York in furtherance of effectuating the provisions of section 44 of the
legislative law and section 70-b of the public officers law.
co-Sponsors
(D) Senate District
2021-S7107B (ACTIVE) - Details
2021-S7107B (ACTIVE) - Sponsor Memo
BILL NUMBER: S7107B
SPONSOR: MANNION
TITLE OF BILL:
An act to amend the mental hygiene law, in relation to supported deci-
sion-making by people with intellectual, developmental, cognitive and
psychosocial disabilities
PURPOSE OF THE BILL:
This proposed legislation would add Article 82 to the Mental Hygiene
Law, creating Supported Decision-Making as a less restrictive alterna-
tive to guardianship. To promote autonomy and self-determination, this
bill would legally recognize Supported Decision-Making Agreements,
allowing for decision-making supports to be formalized by individuals in
need of assistance in making decisions for themselves. It would create
obligations and corresponding immunity from liability for third parties
in order to effectuate supported decisions made in accordance with a
Supported Decision-Making Agreement. The bill would authorize the Office
for People with Developmental Disabilities to promulgate implementation
regulations and would also allow for regulations to be promulgated by
other state agencies serving a myriad of individuals who may also bene-
fit by less restrictive decision-making support, such as the Office of Children and Family Services, Office of Mental Health, State Education Department, and the Office for the Aging. SUMMARY OF PROVISIONS: The fifteen proposed subdivisions of Article 82 include: (1) a legislative purpose preamble; (2) definitions of terms used within the article; (3) provisions defining the presumption of an adult's capacity to enter into a supported decision-making agreement, and protections against using the adult's interest in or execution of a supported decision-mak- ing agreement as evidence of incapacity or the denial of services or benefits; (4) provisions defining the scope of the article, ensuring the continued availability of advance directives and access to personal information, preventing the participation of a supporter in conversations with third- party professionals from constituting a waiver of professional evidenti- ary privilege, and precluding the use of a supported decision-making agreement as a condition of participation in any activity, service, or program; (5) provisions defining the duties, responsibilities, and authority of supporters, and the limits of a supporter's role; (6) provisions describing the formation requirements of a supported decision-making agreement and setting the term of the agreement as effective until revoked by the decision-maker; (7) provisions on the requirements for revocation or amendment of a supported decision-making agreement, allowing for liberal changes to be made only by the decision-maker; (8) limitations on the eligibility of supporters, and process for resig- nation of a supporter, (9) provisions describing the requirement of a facilitation process for the extension of third-party obligations and liability protections; (10) provisions describing the form a supported decision-making agree- ment must take, including the additional requirements for extending third-party obligations and liability protections; (11) provisions describing the obligations on third parties to accept decisions made in accordance with any supported decision-making agree- ment that is validly executed following a process of facilitation as defined by regulations to be promulgated by the Office for People With Developmental Disabilities; (12) provisions limiting liability for third parties who accept deci- sions made in accordance with any supported decision-making agreement that was validly executed following a process of facilitation as defined by regulations to be promulgated by the Office for People With Develop- mental Disabilities; EFFECTIVE DATE: This act shall take effect ninety days from the date that the regu- lations issued in accordance with this act appear in the New York State Register, or the date such regulations are adopted, whichever is later; and provided that the commissioner of mental hygiene shall notify the legislative bill drafting commission upon the occurrence of the appear- ance of the regulations in the New Yok State Register or the date such regulations are adopted, whichever is later, in order that the commis- sion may maintain an accurate and timely effective data base of the official text of laws of the state of New York in furtherance of effect- ing the provisions of section 44 of the legislative law and section 70-b of the public officers law.
2021-S7107B (ACTIVE) - Bill Text download pdf
S T A T E O F N E W Y O R K
________________________________________________________________________
7107--B
Cal. No. 540
2021-2022 Regular Sessions
I N S E N A T E
June 1, 2021
___________
Introduced by Sens. MANNION, GAUGHRAN -- (at request of the Office for
People with Developmental Disabilities) -- read twice and ordered
printed, and when printed to be committed to the Committee on Disabil-
ities -- recommitted to the Committee on Disabilities in accordance
with Senate Rule 6, sec. 8 -- reported favorably from said committee,
ordered to first and second report, ordered to a third reading,
amended and ordered reprinted, retaining its place in the order of
third reading -- passed by Senate and delivered to the Assembly,
recalled, vote reconsidered, restored to third reading, amended and
ordered reprinted, retaining its place in the order of third reading
AN ACT to amend the mental hygiene law, in relation to supported deci-
sion-making by people with intellectual, developmental, cognitive and
psychosocial disabilities
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The mental hygiene law is amended by adding a new article
82 to read as follows:
ARTICLE 82
SUPPORTED DECISION-MAKING
SECTION 82.01 LEGISLATIVE FINDINGS AND PURPOSE.
82.02 DEFINITIONS.
82.03 PRESUMPTION OF CAPACITY.
82.04 SCOPE.
82.05 DUTIES, RESPONSIBILITIES, AND AUTHORITY OF SUPPORTERS.
82.06 FORMATION AND TERM OF AGREEMENT.
82.07 REVOCATION AND AMENDMENT OF AGREEMENT.
82.08 ELIGIBILITY AND RESIGNATION OF SUPPORTERS.
82.09 FACILITATION OF AGREEMENT.
82.10 FORM OF AGREEMENT.
82.11 LEGAL EFFECT OF DECISIONS MADE WITH SUPPORT AND THIRD-PAR-
TY OBLIGATIONS.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD09657-09-2
S. 7107--B 2
82.12 LIMITATIONS ON LIABILITY.
82.13 SUPPORTER NOTICE.
82.14 REPORTING ABUSE, COERCION, UNDUE INFLUENCE, OR FINANCIAL
EXPLOITATION.
82.15 RULES AND REGULATIONS.
§ 82.01 LEGISLATIVE FINDINGS AND PURPOSE.
(A) THE LEGISLATURE FINDS THAT A PERSON'S RIGHT TO MAKE THEIR OWN
DECISIONS IS CRITICAL TO THEIR AUTONOMY AND SELF-DETERMINATION. PEOPLE
WITH INTELLECTUAL, DEVELOPMENTAL, COGNITIVE AND PSYCHOSOCIAL DISABILI-
TIES ARE OFTEN DENIED THAT RIGHT BECAUSE OF STIGMA AND OUTDATED BELIEFS
ABOUT THEIR CAPABILITY. THIS RIGHT IS DENIED, DESPITE THE REALITY THAT
VERY FEW PEOPLE MAKE DECISIONS ENTIRELY ON THEIR OWN. EVERYONE USES
SUPPORTS, AS DO PEOPLE WITH DISABILITIES; WHO MAY JUST NEED MORE OR
DIFFERENT KINDS OF SUPPORTS.
(B) THE LEGISLATURE FURTHER FINDS THAT THE, NOW WELL RECOGNIZED, PRAC-
TICE OF SUPPORTED DECISION-MAKING IS A WAY IN WHICH MANY PEOPLE WITH
DISABILITIES CAN MAKE THEIR OWN DECISIONS WITH THE SUPPORT THEY NEED
FROM TRUSTED PERSONS IN THEIR LIVES, AND THAT SUPPORTED DECISION-MAKING
CAN BE A LESS RESTRICTIVE ALTERNATIVE TO GUARDIANSHIP. RECOGNIZING THAT
SUPPORTED DECISION-MAKING CAN TAKE A VARIETY OF FORMS, THE LEGISLATURE
FINDS THAT A MORE FORMAL PROCESS, RESULTING IN A SUPPORTED DECISION-MAK-
ING AGREEMENT BETWEEN THE PERSON WITH A DISABILITY (THE DECISION-MAKER)
AND THEIR SUPPORTER OR SUPPORTERS, CAN PROVIDE THE BASIS FOR REQUIRING
THIRD PARTIES, WHO MIGHT OTHERWISE QUESTION A PERSON'S LEGAL CAPACITY
BECAUSE OF THEIR DISABILITY, TO RECOGNIZE THEIR DECISIONS ON THE SAME
BASIS AS OTHERS. WHEN THIS MORE FORMAL PROCESS IS FOLLOWED, PEOPLE WITH
DISABILITIES CAN MAKE CHOICES CONFIDENT THAT THEY WILL BE RESPECTED BY
OTHERS AND KNOWING THEY WILL BE SOLELY RESPONSIBLE FOR THEIR OWN DECI-
SIONS.
(C) THE LEGISLATURE FURTHER FINDS THAT SUPPORTED DECISION-MAKING AND
SUPPORTED DECISION-MAKING AGREEMENTS SHOULD BE ENCOURAGED WHEN APPROPRI-
ATE FOR PERSONS WITH DISABILITIES, AND THAT THE EXECUTION OF A SUPPORTED
DECISION-MAKING AGREEMENT SHOULD NOT DETRIMENTALLY IMPACT THE ELIGIBIL-
ITY OF A PERSON FOR OTHER SERVICES, INCLUDING ADULT PROTECTIVE SERVICES.
(D) THE LEGISLATURE ALSO STRONGLY URGES RELEVANT STATE AGENCIES AND
CIVIL SOCIETY TO RESEARCH AND DEVELOP APPROPRIATE AND EFFECTIVE MEANS OF
SUPPORT FOR OLDER PERSONS WITH COGNITIVE DECLINE, PERSONS WITH TRAUMATIC
BRAIN INJURIES, AND PERSONS WITH PSYCHOSOCIAL DISABILITIES, SO THAT FULL
LEGISLATIVE RECOGNITION CAN ALSO BE ACCORDED TO THE DECISIONS MADE WITH
SUPPORTED DECISION-MAKING AGREEMENTS BY PERSONS WITH SUCH CONDITIONS,
BASED ON A CONSENSUS ABOUT WHAT KINDS OF SUPPORT ARE MOST EFFECTIVE AND
HOW THEY CAN BEST BE DELIVERED.
§ 82.02 DEFINITIONS.
WHEN USED IN THIS ARTICLE, THE FOLLOWING TERMS SHALL HAVE THE FOLLOW-
ING MEANING, UNLESS THE CONTEXT OR SUBJECT MATTER REQUIRES A DIFFERENT
INTERPRETATION:
(A) "ABUSE" ENCOMPASSES PHYSICAL ABUSE, SEXUAL ABUSE, AND EMOTIONAL
ABUSE, AS DEFINED IN SECTION FOUR HUNDRED SEVENTY-THREE OF THE SOCIAL
SERVICES LAW.
(B) "ADULT" MEANS AN INDIVIDUAL EIGHTEEN YEARS OF AGE OR OLDER.
(C) "ADVANCE DIRECTIVE" MEANS A LEGALLY RECOGNIZED WRITTEN OR ORAL
INSTRUCTION BY AN ADULT RELATING TO THE PROVISION OF HEALTH CARE TO THE
ADULT IF AND WHEN THEY BECOME INCAPACITATED, INCLUDING BUT NOT LIMITED
TO A HEALTH CARE PROXY, A CONSENT TO THE ISSUANCE OF AN ORDER NOT TO
RESUSCITATE OR OTHER ORDERS FOR LIFE-SUSTAINING TREATMENT RECORDED IN A
S. 7107--B 3
PATIENT'S MEDICAL RECORD, OR OTHER LEGALLY-RECOGNIZED STATEMENTS OF
WISHES OR BELIEFS.
(D) "DECISION-MAKER" MEANS AN ADULT WHO HAS EXECUTED, OR SEEKS TO
EXECUTE, A SUPPORTED DECISION-MAKING AGREEMENT.
(E) "FINANCIAL EXPLOITATION" HAS THE MEANING GIVEN IN SECTION FOUR
HUNDRED SEVENTY-THREE OF THE SOCIAL SERVICES LAW.
(F) "GOOD FAITH" MEANS HONEST IN FACT AND IN THE OBSERVANCE OF REASON-
ABLE STANDARDS OF FAIR DEALING.
(G) "NEGLECT" HAS THE MEANING DEFINED IN PARAGRAPH (D) OF SUBDIVISION
ONE OF SECTION FOUR HUNDRED SEVENTY-THREE OF THE SOCIAL SERVICES LAW.
(H) "PHYSICAL COERCION" MEANS TO PLACE UNDER DURESS, MENACE, OR
THREATEN PHYSICAL VIOLENCE OR IMPRISONMENT.
(I) "SUPPORTED DECISION-MAKING" MEANS A WAY BY WHICH A DECISION-MAKER
UTILIZES SUPPORT FROM TRUSTED PERSONS IN THEIR LIFE, IN ORDER TO MAKE
THEIR OWN DECISIONS ABOUT THEIR LIFE, INCLUDING, BUT NOT LIMITED TO,
DECISIONS RELATED TO WHERE AND WITH WHOM THE DECISION-MAKER WANTS TO
LIVE; DECISIONS ABOUT FINANCES; THE SERVICES, SUPPORTS, AND HEALTH CARE
THE DECISION-MAKER WANTS TO RECEIVE; AND WHERE THE DECISION-MAKER WANTS
TO WORK.
(J) "SUPPORTED DECISION-MAKING AGREEMENT" IS AN AGREEMENT A DECISION-
MAKER ENTERS INTO WITH ONE OR MORE SUPPORTERS UNDER THIS SECTION THAT
DESCRIBES HOW THE DECISION-MAKER USES SUPPORTED DECISION-MAKING TO MAKE
THEIR OWN DECISIONS. SUPPORTED DECISION-MAKING AGREEMENTS CAN EITHER BE
AN INFORMAL ARRANGEMENT BETWEEN THE DECISION-MAKER AND HIS OR HER
SUPPORTER OR SUPPORTERS, OR ONE THAT IS IN ACCORDANCE WITH SECTION 82.11
OF THIS ARTICLE, WHICH HAS BEEN REVIEWED AND SIGNED BY A FACILITATOR.
(K) "SUPPORTER" MEANS AN ADULT WHO HAS VOLUNTARILY ENTERED INTO A
SUPPORTED DECISION-MAKING AGREEMENT WITH A DECISION-MAKER, AGREEING TO
ASSIST THE DECISION-MAKER IN MAKING THEIR OWN DECISIONS AS PRESCRIBED BY
THE SUPPORTED DECISION-MAKING AGREEMENT, AND WHO IS NOT INELIGIBLE UNDER
SECTION 82.08 OF THIS ARTICLE.
(L) "UNDUE INFLUENCE" MEANS MORAL OR MENTAL COERCION THAT LEADS SOME-
ONE TO CARRY OUT THE WISHES OF ANOTHER INSTEAD OF THEIR OWN BECAUSE THEY
ARE UNABLE TO REFUSE OR RESIST.
(M) "FACILITATOR" MEANS AN INDIVIDUAL OR ENTITY AUTHORIZED BY THE
OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES THAT WORKS WITH AND
EDUCATES THE DECISION-MAKER AND HIS OR HER SUPPORTER OR SUPPORTERS ABOUT
SUPPORTED DECISION-MAKING AND SUPPORTED DECISION-MAKING AGREEMENTS
AUTHORIZED UNDER THIS ARTICLE.
§ 82.03 PRESUMPTION OF CAPACITY.
(A) FOR THE PURPOSES OF THIS ARTICLE, EVERY ADULT SHALL BE PRESUMED TO
HAVE THE CAPACITY TO ENTER INTO A SUPPORTED DECISION-MAKING AGREEMENT,
UNLESS THAT ADULT HAS A LEGAL GUARDIAN, APPOINTED BY A COURT OF COMPE-
TENT JURISDICTION, WHOSE GRANTED AUTHORITY IS IN CONFLICT WITH THE
PROPOSED SUPPORTED DECISION-MAKING AGREEMENT. THIS PRESUMPTION MAY BE
REBUTTED ONLY BY CLEAR AND CONVINCING EVIDENCE.
(B) CAPACITY SHALL INCLUDE CAPACITY WITH DECISION-MAKING SUPPORT
AND/OR ACCOMMODATIONS.
(C) A DIAGNOSIS OF A DEVELOPMENTAL OR OTHER DISABILITY OR CONDITION
SHALL NOT CONSTITUTE EVIDENCE OF INCAPACITY.
(D) THE MANNER IN WHICH AN ADULT COMMUNICATES WITH OTHERS SHALL NOT
CONSTITUTE EVIDENCE OF INCAPACITY.
(E) NEITHER THE EXECUTION OF A SUPPORTED DECISION-MAKING AGREEMENT BY
AN INDIVIDUAL, NOR THE INTEREST IN OR WISH TO EXECUTE A SUPPORTED DECI-
SION-MAKING AGREEMENT BY AN INDIVIDUAL, NOR THE FAILURE OF AN INDIVIDUAL
TO EXECUTE A SUPPORTED DECISION-MAKING AGREEMENT MAY BE USED OR CONSID-
S. 7107--B 4
ERED AS EVIDENCE THAT THE INDIVIDUAL LACKS CAPACITY, OR TO DENY THE
DECISION-MAKER BENEFITS TO WHICH THEY ARE OTHERWISE ENTITLED, INCLUDING
ADULT PROTECTIVE SERVICES.
(F) A DECISION-MAKER MAY MAKE AND EXECUTE A SUPPORTED DECISION-MAKING
AGREEMENT, IF THE DECISION-MAKER UNDERSTANDS THAT THEY ARE MAKING AND
EXECUTING AN AGREEMENT WITH THEIR CHOSEN SUPPORTERS AND THAT THEY ARE
DOING SO VOLUNTARILY.
§ 82.04 SCOPE.
(A) IF A DECISION-MAKER VOLUNTARILY ENTERS INTO A SUPPORTED DECISION-
MAKING AGREEMENT WITH ONE OR MORE SUPPORTERS, THE DECISION-MAKER MAY, IN
THE AGREEMENT, AUTHORIZE THE SUPPORTER TO PROVIDE SUPPORT TO THEM IN
MAKING THEIR OWN DECISIONS IN AREAS THEY CHOOSE, INCLUDING, BUT NOT
LIMITED TO: GATHERING INFORMATION, UNDERSTANDING AND INTERPRETING INFOR-
MATION, WEIGHING OPTIONS AND ALTERNATIVES TO A DECISION, CONSIDERING
THE CONSEQUENCES OF MAKING A DECISION OR NOT MAKING IT, PARTICIPATING IN
CONVERSATIONS WITH THIRD PARTIES IF THE DECISION-MAKER IS PRESENT AND
REQUESTS THEIR PARTICIPATION, COMMUNICATING THE DECISION-MAKER'S DECI-
SION TO THIRD PARTIES IF THE DECISION-MAKER IS PRESENT AND REQUESTS
THEIR PARTICIPATION, AND PROVIDING THE DECISION-MAKER SUPPORT IN IMPLE-
MENTING THE DECISION-MAKER'S DECISION.
(B) NOTHING IN THIS ARTICLE, NOR THE EXISTENCE OF AN EXECUTED
SUPPORTED DECISION-MAKING AGREEMENT, SHALL PRECLUDE THE DECISION-MAKER
FROM ACTING INDEPENDENTLY OF THE SUPPORTED DECISION-MAKING AGREEMENT OR
EXECUTING, WITH OR WITHOUT THE ASSISTANCE OF SUPPORTERS UNDER A
SUPPORTED DECISION-MAKING AGREEMENT, A POWER OF ATTORNEY UNDER TITLE
FIFTEEN OF ARTICLE FIVE OF THE GENERAL OBLIGATIONS LAW, HEALTH CARE
PROXY UNDER ARTICLE TWENTY-NINE-C OF THE PUBLIC HEALTH LAW, OR OTHER
ADVANCE DIRECTIVE.
(C) NOTWITHSTANDING THE EXISTENCE OF A SUPPORTED DECISION-MAKING
AGREEMENT, A DECISION-MAKER SHALL CONTINUE TO HAVE UNRESTRICTED ACCESS
TO THEIR PERSONAL INFORMATION WITHOUT THE ASSISTANCE OF A SUPPORTER.
(D) NOTWITHSTANDING THE EXISTENCE OF A SUPPORTED DECISION-MAKING
AGREEMENT, A DECISION-MAKER MAY REQUEST AND RECEIVE ASSISTANCE IN MAKING
ANY DECISION THAT IS NOT COVERED UNDER THE SUPPORTED DECISION-MAKING
AGREEMENT AT ANY TIME AND FROM ANY PERSON, REGARDLESS OF WHETHER THAT
PERSON IS DESIGNATED AS A SUPPORTER IN THE SUPPORTED DECISION-MAKING
AGREEMENT.
(E) A SUPPORTED DECISION-MAKING AGREEMENT MADE PURSUANT TO THIS ARTI-
CLE MAY BE EVIDENCE THAT THE DECISION-MAKER HAS A LESS RESTRICTIVE
ALTERNATIVE TO GUARDIANSHIP IN PLACE.
(F) THE AVAILABILITY OF SUPPORTED DECISION-MAKING AGREEMENTS IS NOT
INTENDED TO LIMIT THE INFORMAL USE OF SUPPORTED DECISION-MAKING, OR TO
PRECLUDE JUDICIAL CONSIDERATION OF SUCH INFORMAL ARRANGEMENTS AS LESS
RESTRICTIVE ALTERNATIVES TO GUARDIANSHIP.
(G) EXECUTION OF A SUPPORTED DECISION-MAKING AGREEMENT MAY NOT BE A
CONDITION OF PARTICIPATION IN ANY ACTIVITY, SERVICE, OR PROGRAM.
(H) IF A DECISION-MAKER SEEKS FROM ANY PERSON PROFESSIONAL ADVICE THAT
WOULD BE OTHERWISE COVERED BY EVIDENTIARY PRIVILEGE IN ACCORDANCE WITH
SECTIONS FORTY-FIVE HUNDRED THREE, FORTY-FIVE HUNDRED FOUR, FORTY-FIVE
HUNDRED SEVEN, FORTY-FIVE HUNDRED EIGHT AND FORTY-FIVE HUNDRED TEN OF
THE CIVIL PRACTICE LAW AND RULES, THE INCLUSION IN THE CONVERSATION OF A
SUPPORTER AUTHORIZED BY THE SUPPORTED DECISION-MAKING AGREEMENT TO
PROVIDE SUPPORT IN THE AREA IN WHICH THE DECISION-MAKER SEEKS THE
PROFESSIONAL ADVICE SHALL NOT CONSTITUTE A WAIVER OF THAT PRIVILEGE.
(I) NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, NOTH-
ING WITHIN THIS ARTICLE SHALL BE CONSTRUED TO PROHIBIT ELIGIBILITY OF A
S. 7107--B 5
DECISION-MAKER FOR RECEIPT OF SERVICES OR SUPPORTS THAT THEY WOULD HAVE
OTHERWISE BEEN ENTITLED, INCLUDING ADULT PROTECTIVE SERVICES, ABSENT
ENTERING INTO A SUPPORTED DECISION-MAKING AGREEMENT UNDER THE PROVISIONS
OF THIS ARTICLE.
(J) A SUPPORTED DECISION-MAKING AGREEMENT MADE BETWEEN A DECISION-MAK-
ER AND HIS OR HER SUPPORTER OR SUPPORTERS AFTER CONSULTATION AND EDUCA-
TION, WHICH IS SIGNED BY A FACILITATOR SHALL HAVE THE LEGAL FORCE AND
EFFECT AUTHORIZED UNDER SECTION 82.11 OF THIS ARTICLE.
§ 82.05 DUTIES, RESPONSIBILITIES, AND AUTHORITY OF SUPPORTERS.
(A) A SUPPORTER MUST:
1. RESPECT THE DECISION-MAKER'S RIGHT TO MAKE A DECISION, EVEN WHEN
THE SUPPORTER DISAGREES WITH THE DECISION OR BELIEVES IT IS NOT IN THE
DECISION-MAKER'S BEST INTERESTS;
2. ACT HONESTLY, DILIGENTLY, AND IN GOOD FAITH;
3. ACT WITHIN THE SCOPE SET FORTH IN THE EXECUTED SUPPORTED DECISION-
MAKING AGREEMENT;
4. AVOID CONFLICTS OF INTEREST;
5. NOTIFY THE DECISION-MAKER IN WRITING, AND IN A MANNER THE DECI-
SION-MAKER CAN UNDERSTAND, OF THE SUPPORTER'S INTENT TO RESIGN AS A
SUPPORTER; AND
6. PARTICIPATE IN FACILITATION AND/OR EDUCATION PROGRAMS DEVELOPED
UNDER REGULATIONS PROMULGATED BY THE OFFICE FOR PEOPLE WITH DEVELOP-
MENTAL DISABILITIES IN ORDER TO ENTER A FORMAL SUPPORTED DECISION-MAKING
AGREEMENT.
(B) A SUPPORTER IS PROHIBITED FROM:
1. MAKING DECISIONS FOR THE DECISION-MAKER, EXCEPT TO THE EXTENT
OTHERWISE GRANTED IN AN ADVANCE DIRECTIVE;
2. EXERTING UNDUE INFLUENCE UPON THE DECISION-MAKER;
3. PHYSICALLY COERCING THE DECISION-MAKER;
4. OBTAINING, WITHOUT THE CONSENT OF THE DECISION-MAKER, INFORMATION
ACQUIRED FOR A PURPOSE OTHER THAN ASSISTING THE DECISION-MAKER IN MAKING
A DECISION AUTHORIZED BY THE SUPPORTED DECISION-MAKING AGREEMENT;
5. OBTAINING, WITHOUT THE CONSENT OF THE DECISION-MAKER, OR AS
EXPRESSLY GRANTED BY THE SUPPORTED DECISION-MAKING AGREEMENT, AND ACCOM-
PANIED BY AN APPROPRIATE RELEASE, NONPUBLIC PERSONAL INFORMATION AS
DEFINED IN 15 U.S.C. § 6809(4)(A), OR CLINICAL RECORDS OR INFORMATION
UNDER SUBDIVISION (C) OF SECTION 33.13 OF THIS CHAPTER; AND
6. COMMUNICATING A DECISION-MAKER'S DECISION TO A THIRD-PARTY WITHOUT
THE PARTICIPATION AND PRESENCE OF THE DECISION-MAKER.
(C) THE RELATIONSHIP BETWEEN A DECISION-MAKER AND A SUPPORTER IS ONE
OF TRUST AND CONFIDENCE AND SERVES TO PRESERVE THE DECISION-MAKING
AUTHORITY OF THE DECISION-MAKER.
(D) A SUPPORTER SHALL NOT BE CONSIDERED A SURROGATE OR SUBSTITUTE
DECISION MAKER FOR THE DECISION-MAKER AND SHALL NOT HAVE THE AUTHORITY
TO SIGN LEGAL DOCUMENTS ON BEHALF OF THE DECISION-MAKER OR BIND THE
DECISION-MAKER TO A LEGAL AGREEMENT, BUT MAY, IF SUCH AUTHORITY IS
EXPRESSLY GRANTED IN THE SUPPORTED DECISION-MAKING AGREEMENT, PROVIDE
CO-SIGNATURE TOGETHER WITH THE DECISION-MAKER ACKNOWLEDGING THE RECEIPT
OF STATEMENTS OF RIGHTS AND RESPONSIBILITIES IN ORDER TO PERMIT PARTIC-
IPATION IN SUCH PROGRAMS OR ACTIVITIES THAT THE DECISION-MAKER HAS
COMMUNICATED A CHOICE TO PARTICIPATE IN.
(E) IF EXPRESSLY GRANTED BY THE SUPPORTED DECISION-MAKING AGREEMENT,
AND THE DECISION-MAKER HAS SIGNED AN APPROPRIATE RELEASE, THE SUPPORTER
MAY ASSIST THE DECISION-MAKER IN OBTAINING EDUCATIONAL RECORDS UNDER THE
FAMILY EDUCATIONAL RIGHTS AND PRIVACY ACT OF 1974 (20 U.S.C. § 1232G),
PROTECTED HEALTH INFORMATION UNDER THE HEALTH INSURANCE PORTABILITY AND
S. 7107--B 6
ACCOUNTABILITY ACT OF 1996 (45 CFR §§ 164.502, 164.508), CLINICAL
RECORDS AND INFORMATION UNDER SUBDIVISION (C) OF SECTION 33.13 OF THIS
CHAPTER, OR PATIENT INFORMATION UNDER SUBDIVISIONS TWO AND THREE OF
SECTION EIGHTEEN OF THE PUBLIC HEALTH LAW.
(F) A SUPPORTER SHALL ENSURE THE INFORMATION OBTAINED UNDER SUBDIVI-
SION (E) OF THIS SECTION IS KEPT PRIVILEGED AND CONFIDENTIAL, AS APPLI-
CABLE, AND IS NOT SUBJECT TO UNAUTHORIZED ACCESS, USE, OR DISCLOSURE.
§ 82.06 FORMATION AND TERM OF AGREEMENT.
(A) AN ADULT MAY ENTER INTO A SUPPORTED DECISION-MAKING AGREEMENT AT
ANY TIME IF THE ADULT ENTERS INTO THE AGREEMENT VOLUNTARILY.
(B) A DECISION-MAKER MAY SIGN A SUPPORTED DECISION-MAKING AGREEMENT IN
ANY MANNER, INCLUDING ELECTRONIC SIGNATURES PERMITTED UNDER ARTICLE
THREE OF THE STATE TECHNOLOGY LAW.
(C) A SUPPORTED DECISION-MAKING AGREEMENT FORMED UNDER THE PROVISIONS
OF THIS ARTICLE SHALL REMAIN IN EFFECT UNLESS AND UNTIL REVOKED BY THE
DECISION-MAKER.
§ 82.07 REVOCATION AND AMENDMENT OF AGREEMENT.
(A) THE DECISION-MAKER MAY REVOKE ALL OR PART OF A SUPPORTED DECI-
SION-MAKING AGREEMENT BY NOTIFYING THE SUPPORTERS ORALLY OR IN WRITING,
OR BY ANY OTHER ACT EVINCING A SPECIFIC INTENT TO REVOKE THE AGREEMENT.
THE FAILURE OF THE DECISION-MAKER TO NOTIFY SUPPORTERS SHALL NOT INVALI-
DATE THE REVOCATION OF ALL OR PART OF THE SUPPORTED DECISION-MAKING
AGREEMENT.
(B) A DECISION-MAKER MAY AMEND A SUPPORTED DECISION-MAKING AGREEMENT
AT ANY TIME FOR ANY REASON, SUBJECT TO THE REQUIREMENTS OF THIS SECTION.
THE DECISION-MAKER SHALL NOTIFY ALL SUPPORTERS OF ANY AMENDMENT MADE TO
THE SUPPORTED DECISION-MAKING AGREEMENT, BUT THE FAILURE TO DO SO SHALL
NOT INVALIDATE THE AMENDMENT.
§ 82.08 ELIGIBILITY AND RESIGNATION OF SUPPORTERS.
(A) A SUPPORTER SHALL BE ANY ADULT CHOSEN BY THE DECISION-MAKER; IF
THE SUPPORTER CHOSEN BY THE DECISION-MAKER IS AN EMPLOYEE OF A PROVIDER
FROM WHOM THE DECISION-MAKER RECEIVES SERVICES, THE EMPLOYEE AND THE
PROVIDER SHALL FOLLOW THE REQUIREMENTS SET OUT IN REGULATIONS PROMULGAT-
ED BY THE OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES, OR OTHER
APPROPRIATE REGULATORY BODY WHICH ADDRESS THOSE CIRCUMSTANCES, WITH
ATTENTION PAID TO RELATIVE LABOR LAW AND EMPLOYMENT OBLIGATIONS AND
POSSIBLE CONFLICTS OF INTEREST OR THE APPEARANCE OF A CONFLICT OF INTER-
EST.
(B) AN INDIVIDUAL WHO HAS BEEN CHOSEN BY THE DECISION-MAKER TO BE A
SUPPORTER, OR WHO HAS ENTERED INTO A SUPPORTED DECISION-MAKING AGREEMENT
AS A SUPPORTER, SHALL BE DEEMED INELIGIBLE TO ACT, OR CONTINUE TO SERVE
AS SUPPORTER UPON THE OCCURRENCE OF ANY OF THE FOLLOWING:
1. A COURT AUTHORIZES A PROTECTIVE ORDER OR RESTRAINING ORDER AGAINST
THE SUPPORTER ON REQUEST OF OR ON BEHALF OF THE DECISION-MAKER; OR
2. THE LOCAL DEPARTMENT OF SOCIAL SERVICES HAS FOUND THAT THE SUPPORT-
ER HAS COMMITTED ABUSE, NEGLECT, FINANCIAL EXPLOITATION, OR PHYSICAL
COERCION AGAINST THE DECISION-MAKER AS SUCH TERMS ARE DEFINED IN SECTION
82.02 OF THIS ARTICLE.
(C) A SUPPORTER MAY RESIGN AS SUPPORTER BY WRITTEN OR ORAL NOTICE TO
THE DECISION-MAKER AND THE REMAINING SUPPORTERS.
(D) IF THE SUPPORTED DECISION-MAKING AGREEMENT INCLUDES MORE THAN ONE
SUPPORTER OR IS AMENDED TO REPLACE THE SUPPORTER WHO IS INELIGIBLE UNDER
SUBDIVISION (B) OF THIS SECTION OR RESIGNS UNDER SUBDIVISION (C) OF THIS
SECTION, THE SUPPORTED DECISION-MAKING AGREEMENT SHALL SURVIVE FOR THE
REMAINING SUPPORTERS, UNLESS IT IS OTHERWISE REVOKED UNDER SECTION 82.07
OF THIS ARTICLE.
S. 7107--B 7
(E) IF THE SUPPORTED DECISION-MAKING AGREEMENT DOES NOT INCLUDE MORE
THAN ONE SUPPORTER, AND IS NOT AMENDED TO REPLACE THE SUPPORTER WHO
BECOMES INELIGIBLE UNDER SUBDIVISION (B) OF THIS SECTION OR RESIGNS
UNDER SUBDIVISION (C) OF THIS SECTION, THE SUPPORTED DECISION-MAKING
AGREEMENT SHALL BE CONSIDERED TERMINATED.
§ 82.09 FACILITATION OF AGREEMENT.
THE PROVISIONS OF SECTION 82.11 AND SUBDIVISIONS (B) THROUGH (D) OF
SECTION 82.12 OF THIS ARTICLE SHALL ONLY APPLY IN CIRCUMSTANCES WHERE A
DECISION IS MADE BY A DECISION-MAKER PURSUANT TO A SUPPORTED DECISION-
MAKING AGREEMENT CREATED IN ACCORDANCE WITH THIS ARTICLE WHERE SUCH
DECISION-MAKER AND HIS OR HER SUPPORTER OR SUPPORTERS HAVE WORKED WITH A
FACILITATOR, SUCH SUPPORTER OR SUPPORTERS HAVE FOLLOWED A RECOGNIZED
SUPPORTED DECISION-MAKING FACILITATION OR EDUCATION PROCESS AS DEFINED
AND PRESCRIBED BY REGULATIONS PROMULGATED BY THE OFFICE FOR PEOPLE WITH
DEVELOPMENTAL DISABILITIES AND SUCH FACILITATOR HAS SIGNED SUCH AGREE-
MENT.
§ 82.10 FORM OF AGREEMENT.
(A) A SUPPORTED DECISION-MAKING AGREEMENT MAY BE IN ANY FORM CONSIST-
ENT WITH THE REQUIREMENTS SET FORTH IN THIS ARTICLE.
(B) A SUPPORTED DECISION-MAKING AGREEMENT MUST:
1. BE IN WRITING;
2. BE DATED;
3. DESIGNATE THE DECISION-MAKER, AND AT LEAST ONE SUPPORTER;
4. LIST THE CATEGORIES OF DECISIONS WITH WHICH A SUPPORTER IS AUTHOR-
IZED TO ASSIST THE DECISION-MAKER;
5. LIST THE KINDS OF SUPPORT THAT EACH SUPPORTER MAY GIVE FOR EACH
AREA IN WHICH THEY ARE DESIGNATED AS A SUPPORTER;
6. CONTAIN AN ATTESTATION THAT THE SUPPORTERS AGREE TO HONOR THE RIGHT
OF THE DECISION-MAKER TO MAKE THEIR OWN DECISIONS IN THE WAYS AND AREAS
SPECIFIED IN THE AGREEMENT, RESPECT THE DECISION-MAKER'S DECISIONS, AND,
FURTHER, THAT THEY WILL NOT MAKE DECISIONS FOR THE DECISION-MAKER;
7. STATE THAT THE DECISION-MAKER MAY CHANGE, AMEND, OR REVOKE THE
SUPPORTED DECISION-MAKING AGREEMENT AT ANY TIME FOR ANY REASON, SUBJECT
TO THE REQUIREMENTS OF SECTION 82.06 OF THIS ARTICLE;
8. BE SIGNED BY ALL DESIGNATED SUPPORTERS; AND
9. BE EXECUTED OR ENDORSED BY THE DECISION-MAKER IN THE PRESENCE OF AT
LEAST TWO ADULT WITNESSES WHO ARE NOT ALSO DESIGNATED AS SUPPORTERS, OR
WITH THE ATTESTATION OF A NOTARY PUBLIC.
(C) A SUPPORTED DECISION-MAKING AGREEMENT MAY:
1. APPOINT MORE THAN ONE SUPPORTER;
2. AUTHORIZE A SUPPORTER TO OBTAIN PERSONAL INFORMATION AS DESCRIBED
IN SUBDIVISION (E) OF SECTION 82.05 OF THIS ARTICLE;
3. AUTHORIZE A SUPPORTER TO SHARE INFORMATION WITH ANY OTHER SUPPORTER
OR OTHERS NAMED IN THE AGREEMENT; OR
4. DETAIL ANY OTHER LIMITATIONS ON THE SCOPE OF A SUPPORTER'S ROLE
THAT THE DECISION-MAKER DEEMS IMPORTANT.
(D) IN ORDER TO BE SUBJECT TO THE PROVISIONS OF SECTION 82.11 AND
SUBDIVISIONS (B) THROUGH (D) OF SECTION 82.12 OF THIS ARTICLE, A
SUPPORTED DECISION-MAKING AGREEMENT MUST ALSO:
1. BE SIGNED BY A FACILITATOR OR EDUCATOR;
2. INCLUDE A STATEMENT THAT THE SUPPORTED DECISION-MAKING AGREEMENT
WAS MADE IN ACCORDANCE WITH A RECOGNIZED FACILITATION AND/OR EDUCATION
PROCESS; AND
3. INCLUDE AN ATTACHED ATTESTATION BY THE DECISION-MAKER THAT A
PARTICULAR DECISION HAS BEEN MADE IN ACCORDANCE WITH THE SUPPORT
DESCRIBED IN THE SUPPORTED DECISION-MAKING AGREEMENT.
S. 7107--B 8
§ 82.11 LEGAL EFFECT OF DECISIONS MADE WITH SUPPORT AND THIRD PARTY
OBLIGATIONS.
(A) THIS SECTION SHALL APPLY ONLY TO DECISIONS MADE PURSUANT TO
SUPPORTED DECISION-MAKING AGREEMENTS CREATED IN ACCORDANCE WITH THIS
ARTICLE AND FOLLOWING A RECOGNIZED SUPPORTED DECISION-MAKING FACILI-
TATION OR EDUCATION PROCESS, AS PRESCRIBED BY REGULATIONS GOVERNING THE
FACILITATION AND EDUCATION PROCESSES PROMULGATED BY THE OFFICE FOR
PEOPLE WITH DEVELOPMENTAL DISABILITIES. ADDITIONALLY, SUCH DECISIONS
SHALL BE SIGNED BY A FACILITATOR.
(B) A DECISION OR REQUEST MADE OR COMMUNICATED BY A DECISION-MAKER
WITH THE ASSISTANCE OF A SUPPORTER IN ACCORDANCE WITH THE PROVISIONS OF
A SUPPORTED DECISION-MAKING AGREEMENT MUST, NOTWITHSTANDING ANY OTHER
PROVISION OF LAW, BE RECOGNIZED AS THE DECISION OR REQUEST OF THE DECI-
SION-MAKER AND MAY BE ENFORCED BY THE DECISION-MAKER IN LAW OR EQUITY ON
THE SAME BASIS AS ALL OTHERS.
(C) A PERSON, ENTITY, OR AGENCY REQUIRED TO RECOGNIZE AND HONOR A
DECISION MADE PURSUANT TO A SUPPORTED DECISION-MAKING AGREEMENT AUTHOR-
IZED BY THIS SECTION MAY REQUIRE THE DECISION-MAKER TO EXECUTE OR
ENDORSE AN ATTESTATION, AS PROVIDED IN PARAGRAPH THREE OF SUBDIVISION
(D) OF SECTION 82.10 OF THIS ARTICLE, AS A CONDITION OF RECOGNIZING AND
HONORING THE DECISION.
(D) A PERSON, ENTITY, OR AGENCY THAT RECEIVES A SUPPORTED DECISION-
MAKING AGREEMENT MUST HONOR A DECISION MADE IN ACCORDANCE WITH THE
AGREEMENT, UNLESS THE PERSON, ENTITY, OR AGENCY HAS SUBSTANTIAL CAUSE TO
BELIEVE THE SUPPORTED DECISION-MAKING AGREEMENT HAS BEEN REVOKED, OR THE
DECISION-MAKER IS BEING ABUSED, COERCED, UNDULY INFLUENCED, OR FINAN-
CIALLY EXPLOITED BY THE SUPPORTER, OR THAT THE DECISION WILL CAUSE THE
DECISION-MAKER SUBSTANTIAL AND IMMINENT PHYSICAL OR FINANCIAL HARM.
§ 82.12 LIMITATIONS ON LIABILITY.
(A) SUBDIVISIONS (B), (C) AND (D) OF THIS SECTION SHALL APPLY ONLY TO
DECISIONS MADE PURSUANT TO SUPPORTED DECISION-MAKING AGREEMENTS CREATED
IN ACCORDANCE WITH THIS ARTICLE WHICH ARE SIGNED BY A FACILITATOR AND
FOLLOWING A RECOGNIZED SUPPORTED DECISION-MAKING FACILITATION OR EDUCA-
TION PROCESS, AS PRESCRIBED BY REGULATIONS GOVERNING THE FACILITATION
AND EDUCATION PROCESSES PROMULGATED BY THE OFFICE FOR PEOPLE WITH DEVEL-
OPMENTAL DISABILITIES.
(B) A PERSON SHALL NOT BE SUBJECT TO CRIMINAL OR CIVIL LIABILITY AND
SHALL NOT BE DETERMINED TO HAVE ENGAGED IN PROFESSIONAL MISCONDUCT FOR
AN ACT OR OMISSION IF THE ACT OR OMISSION IS DONE IN GOOD FAITH AND IN
RELIANCE ON A DECISION MADE BY A DECISION-MAKER PURSUANT TO A DULY
EXECUTED SUPPORTED DECISION-MAKING AGREEMENT CREATED IN ACCORDANCE WITH
THIS ARTICLE.
(C) ANY HEALTH CARE PROVIDER THAT PROVIDES HEALTH CARE BASED ON THE
CONSENT OF A DECISION-MAKER, GIVEN WITH SUPPORT OR ASSISTANCE PROVIDED
THROUGH A DULY EXECUTED SUPPORTED DECISION-MAKING AGREEMENT CREATED IN
ACCORDANCE WITH THIS ARTICLE, SHALL BE IMMUNE FROM ANY ACTION ALLEGING
THAT THE DECISION-MAKER LACKED CAPACITY TO PROVIDE INFORMED CONSENT,
UNLESS THE ENTITY, CUSTODIAN, OR ORGANIZATION HAD ACTUAL KNOWLEDGE OR
NOTICE THAT THE DECISION-MAKER HAD REVOKED THE SUPPORTED DECISION-MAKING
AGREEMENT, OR THAT THE SUPPORTER HAD COMMITTED ABUSE, PHYSICAL COERCION,
UNDUE INFLUENCE, OR FINANCIAL EXPLOITATION WITH RESPECT TO THE DECISION
TO GRANT CONSENT.
(D) ANY PUBLIC OR PRIVATE ENTITY, CUSTODIAN, OR ORGANIZATION THAT
DISCLOSES PERSONAL INFORMATION ABOUT A DECISION-MAKER IN RELIANCE ON THE
TERMS OF A DULY EXECUTED SUPPORTED DECISION-MAKING AGREEMENT CREATED IN
ACCORDANCE WITH THIS ARTICLE, TO A SUPPORTER AUTHORIZED BY THE TERMS OF
S. 7107--B 9
THE SUPPORTED DECISION-MAKING AGREEMENT TO ASSIST THE DECISION-MAKER IN
ACCESSING, COLLECTING, OR OBTAINING THAT INFORMATION UNDER SUBDIVISION
(E) OF SECTION 82.05 OF THIS ARTICLE, SHALL BE IMMUNE FROM ANY ACTION
ALLEGING THAT IT IMPROPERLY OR UNLAWFULLY DISCLOSED SUCH INFORMATION TO
THE SUPPORTER UNLESS THE ENTITY, CUSTODIAN, OR ORGANIZATION HAD ACTUAL
KNOWLEDGE THAT THE DECISION-MAKER HAD REVOKED SUCH AUTHORIZATION.
(E) THIS SECTION MAY NOT BE CONSTRUED TO PROVIDE IMMUNITY FROM ACTIONS
ALLEGING THAT A HEALTH CARE PROVIDER, OR OTHER THIRD PARTY, HAS DONE ANY
OF THE FOLLOWING:
1. CAUSED PERSONAL INJURY AS A RESULT OF A NEGLIGENT, RECKLESS, OR
INTENTIONAL ACT;
2. ACTED INCONSISTENTLY WITH THE EXPRESSED WISHES OF A DECISION-MAKER;
3. FAILED TO PROVIDE INFORMATION TO EITHER DECISION-MAKER OR THEIR
SUPPORTER THAT WOULD BE NECESSARY FOR INFORMED CONSENT; OR
4. OTHERWISE ACTED INCONSISTENTLY WITH APPLICABLE LAW.
(F) THE EXISTENCE OR AVAILABILITY OF A SUPPORTED DECISION-MAKING
AGREEMENT DOES NOT RELIEVE A HEALTH CARE PROVIDER, OR OTHER THIRD PARTY,
OF ANY LEGAL OBLIGATION TO PROVIDE SERVICES TO INDIVIDUALS WITH DISABIL-
ITIES, INCLUDING THE OBLIGATION TO PROVIDE REASONABLE ACCOMMODATIONS OR
AUXILIARY AIDS AND SERVICES, INCLUDING, BUT NOT LIMITED TO, INTERPRETA-
TION SERVICES AND COMMUNICATION SUPPORTS TO INDIVIDUALS WITH DISABILI-
TIES UNDER THE FEDERAL AMERICANS WITH DISABILITIES ACT (42 U.S.C. §
12101).
§ 82.13 SUPPORTER NOTICE.
(A) IF ANY STATE OR MUNICIPAL LAW REQUIRES THAT AN AGENCY, ENTITY, OR
PERSON PROVIDE A PRESCRIBED NOTICE TO A DECISION-MAKER, AND THE AGENCY,
ENTITY, OR PERSON REQUIRED TO PROVIDE SUCH NOTICE HAS RECEIVED A
SUPPORTED DECISION-MAKING AGREEMENT FROM A DECISION-MAKER THAT SPECIFIES
THAT A SUPPORTER IS ALSO TO RECEIVE A COPY OF ANY SUCH NOTICE, THEN THE
AGENCY, ENTITY, OR PERSON IN POSSESSION OF THE SUPPORTED DECISION-MAKING
AGREEMENT SHALL ALSO PROVIDE THE SPECIFIED SUPPORTER WITH A COPY OF SUCH
NOTICE.
(B) NOTWITHSTANDING THE PROVISIONS OF THIS SUBSECTION, IF ANY STATE OR
MUNICIPAL LAW REQUIRES THAT AN AGENCY, ENTITY, OR PERSON PROVIDE A
PRESCRIBED NOTICE TO A DECISION-MAKER AND SUCH NOTICE INCLUDES PROTECTED
INFORMATION, INCLUDING PRIVATE HEALTH INFORMATION OR EDUCATIONAL RECORDS
PROTECTED BY STATE OR FEDERAL LAW, SUCH NOTICE SHALL NOT BE PROVIDED TO
THE SPECIFIED SUPPORTER UNLESS THE SUPPORTED DECISION-MAKING AGREEMENT
IS ACCOMPANIED BY A RELEASE AUTHORIZING THE SPECIFIED SUPPORTER TO
OBTAIN THE PROTECTED INFORMATION.
§ 82.14 REPORTING ABUSE, COERCION, UNDUE INFLUENCE, OR FINANCIAL EXPLOI-
TATION.
(A) ANY PERSON WHO RECEIVES A COPY OF OR AN ORIGINAL SUPPORTED DECI-
SION-MAKING AGREEMENT AND HAS CAUSE TO BELIEVE THE DECISION-MAKER IS
BEING ABUSED, PHYSICALLY COERCED, OR FINANCIALLY EXPLOITED BY A SUPPORT-
ER, MAY REPORT THE ALLEGED ABUSE, PHYSICAL COERCION, OR FINANCIAL
EXPLOITATION TO ADULT PROTECTIVE SERVICES PURSUANT TO SECTION FOUR
HUNDRED SEVENTY-THREE OF THE SOCIAL SERVICES LAW.
(B) NOTHING IN THIS SECTION MAY BE CONSTRUED AS ELIMINATING OR LIMIT-
ING A PERSON'S DUTY OR REQUIREMENT TO REPORT UNDER ANY OTHER STATUTE OR
REGULATION.
§ 82.15 RULES AND REGULATIONS.
(A) THE COMMISSIONER OF THE OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISA-
BILITIES SHALL PROMULGATE WITHIN ONE YEAR OF THE PASSAGE OF THIS ACT THE
RULES AND REGULATIONS NECESSARY TO IMPLEMENT THIS ARTICLE FOR ADULTS WHO
RECEIVE OR ARE ELIGIBLE TO RECEIVE SERVICES THAT ARE OPERATED, CERTI-
S. 7107--B 10
FIED, FUNDED OR APPROVED BY THE OFFICE FOR PEOPLE WITH DEVELOPMENTAL
DISABILITIES.
(B) ADDITIONAL REGULATIONS RELATED TO THIS ARTICLE MAY BE PROMULGATED
BY STATE AGENCIES WHOSE SERVICE POPULATIONS MAY BENEFIT FROM THE IMPLE-
MENTATION OF SUPPORTED DECISION-MAKING.
§ 2. This act shall take effect ninety days from the date that the
regulations issued in accordance with section one of this act appear in
the New York State Register, or the date such regulations are adopted,
whichever is later; and provided that the commissioner of mental
hygiene shall notify the legislative bill drafting commission upon the
occurrence of the appearance of the regulations in the New York State
Register or the date such regulations are adopted, whichever is later,
in order that the commission may maintain an accurate and timely effec-
tive data base of the official text of laws of the state of New
York in furtherance of effectuating the provisions of section 44 of the
legislative law and section 70-b of the public officers law.
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